YIP CHUNG MAN v. SECRETARY FOR JUSTICE on behalf of THE COMMISSIONER OF POLICE

   HCPI 485/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 485 OF 2001

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BETWEEN

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J U D G M E N T

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1.  The plaintiff is a police constable in the Hong Kong Police Force. He was born in 1975. The plaintiff joined the Police Training School in August 1996 when he was 21 years old as a recruited police constable.

2.  The plaintiff passed out from the Police Training School in March 1997. He was then deployed to a patrol sub-unit of Central Police Station.

3.  From May 1998 the plaintiff was posted to attend a training course with the Police Tactical Unit.

4.  On 8 June 1998 the team of which the plaintiff was a member was assigned to receive training relating to a “Saxon” armoured vehicle. In the course of training the instructors required the plaintiff and members of his group to experience the electrification system of the vehicle so that they would be familiar with the feeling of receiving a small electric shock. The plaintiff was required to climb on top of the vehicle which he did holding onto the metal bar of the vehicle firmly with his hands. He felt a tingling in his hands due to the electric current being discharged which was weak. He was then asked to climb down. As he did so he held the metal bar of the vehicle with his hands. He suddenly had an intense feeling of electric shock and his hands and body shook. Because of the strong electric current in his body he was thrown off the vehicle. His right foot landed first and he landed about 8 feet away. He sustained personal injuries as a result of this.

5.  The plaintiff brought these proceedings for damages for his personal injuries on 1 June 2001.

6.  Liability has been admitted by a consent order made on 24 May 2008. This is the trial of the assessment of damages.

7.  Damages are claimed under the following heads:

(1)  Pain, suffering and loss of amenities (“PSLA”);

(2)  Loss of chance of promotion;

(3)  Loss of chance of increased pension;

(4)  Loss of chance of increased housing allowance;

(5)  Loss of earning capacity;

(6)  Loss of congenial employment;

(7)  Special damages; and

(8)  Cost of future medication.

8.  Special damages were agreed at trial at $38,647.50. It was also agreed that the employees’ compensation paid to the plaintiff in the sum of $187,144.87 should be deducted from the total award.

9.  I heard evidence from the plaintiff. I accept parts of his evidence but reject other parts which I did not believe and which I do not accept.

10.  I also heard evidence from Chief Inspector Cheng Tak Sun (“Cheng”), Chief Inspector Kan Kai Yan (“Kan”), Senior Superintendent Anthony Kwok Ho Yee (“Kwok”). I accept their evidence. I believe them.

11.  Apart from the medical reports in evidence I also heard evidence fromDr Lau Hoi Kuen (“Dr Lau”) and Dr Yu Sing Joe (“Dr Yu”).

The injuries

12.  The medical reports concerning the plaintiff have been adduced in evidence including the reports of Dr York Chow (“Dr Chow”), Dr Lau and Dr Yu.

13.  There is no dispute that by landing on his right foot when he fell off the vehicle the plaintiff suffered a bimalleolar Weber Type C ankle fracture of the right ankle. He was immediately admitted to Queen Mary Hospital on 8 June 1998 and treated conservatively with immobilization and elevation. He had an operation on 15 June 1998 with internal fixation with plating of the fibula.

14.  The post-operative period was uneventful and he was transferred to another hospital on 25 June 2998 for rehabilitation which included physiotherapy. On 24 August 1998 he was transferred to Maclehose Medical Rehabilitation Centre for rehabilitation. He was discharged in early 1999.

15.  The plaintiff complained of mild discomfort around the ankle. X-ray showed bridging between the distal tibia and fibula. He was re-admitted to Queen Mary Hospital on 4 September 1999 for surgical removal of the implant which was done on 6 September 1999. He was transferred to Maclehose Medical Rehabilation Centre for rehabilitation on 13 September 1999 until his discharge in June 2000.

16.  Dr Chow examined the plaintiff on 18 September 2000. His report dated 16 January 2001 sets out his examination and findings.

17.  According to what the plaintiff told Dr Chow he had no difficulty in performing the usual activities of daily living. He could stand or walk for about 2 hours then start to experience discomfort and pain over the right ankle. When he tried to do running exercise in the gymnasium he always experienced pain on initiation of running and also on prolonged running. On prolonged standing or walking he also experienced an increase in swelling of the right ankle.

18.  Physical examination by Dr Chow showed no limb shortening. The plaintiff’s right medial malleolus was more prominent and there was a long linear scar (10 cm) along the lower end of the right fibula down to the lateral malleolus. His right calf was slightly wasted compared with the left one. The left calf circumference measured 38 cm and the right calf 36 cm. The muscle strength of his right foot and toes were normal and there was no sensory impairment of the right foot. Dr Chow found that compared with the left ankle, the plaintiff’s right ankle had less 20˚ of plantaflexion and 10˚ of dorsiflexion. The motion of the mid-tarsal joint was normal with no difference of inversion or reversion of his right foot when compared with his left foot. The plaintiff could squat completely and also support himself on tip toes. The musculature above the knee was normal and equal for both lower limbs.

19.  The X-ray taken on 12 December 2000 showed a healed long oblique fracture of the right fibula 3 cm above the tibio-fibular synedesmosis. The lower fibula was angled forward about 5˚ and shortened by 3 mm when compared with the left ankle. There was a bony bridge between the tibia and fibula just above the site of the syndesmodic ligaments. The medial malleolus showed a healed fracture just below the ankle joint line with prominent new bone both on the surface (medial) side as well as a bony spur on medial angle of the ankle mortice. The joint space of the right ankle was slightly narrower than the left which, in Dr Chow’s opinion, was a sign of thinning of the articular cartilage.

20.  As set out in his report Dr Chow was of the opinion that the plaintiff

“ had a classical Weber Type ‘C’ ankle fracture (Pott’s fracture) which was caused by a high velocity impact with the foot in eversion and external rotation.  It resulted in an avulsion fracture of the medial malleolus, dislocation of the talus by breaking the ankle mortice through the breaking of the anterior, followed by the posterior syndesmodic ligaments (i.e. inferior, anterior and posterior tibio-fibular ligaments), the lower interosseus membrane, and a high oblique fracture of the fibula.  As [the plaintiff’s] injury involved a substantial vertical impact force, there was comminution of the fractures on the lateral aspects of both the medial malleolus and the fibular fracture fragments.  This accounted for the difficulty of accurate anatomical reduction even with operative open reduction and internal fixation.  With disruption of both anterior and posterior ligaments of the syndesmosis, the ankle mortice would be either widened (due to laxity of the scarred or healed ligaments), or narrowed (due to contracted scarred ligaments; or bony bridging between lower tiba and fibula, a common complication resulting from stripping of the periosteum as a result of the injury, together with the surgical operation).  In [the plaintiff’s] case, his ankle mortice is now slightly narrowed on its inlet, i.e. upper part (due to the rigid bony bridge of the tibio-fibular joint), and slightly widened in its outlet, i.e. lower part (due to the shortened lateral malleolus).  This joint incongruity of the ankle mortice explains the limited motion of the ankle, the pain/discomfort caused by prolonged standing or walking, and the early radiological signs of degenerative arthritis (refer to diagram).”

21.  The diagram which is annexed to the report of Dr Chow provides a helpful explanation of what Dr Chow was expressing in his report.

22.  Dr Chow was also of the view that the range of motion existing at the time of the examination of the plaintiff’s right ankle, though limited, was still adequate for normal activities of daily living and should not significantly affect his lifestyle or work provided he was to continue with his indoor duties.

23.  At that time the plaintiff was performing indoor duties in his work as a police constable.

24.  He was advised to take up more sports or physical activities that would not be associated with vertical loading impact to maintain his ankle motion and strengthen his lower limb muscles.

25.  Dr Chow also said that there were already signs and symptoms of early arthritis. That being so, it was almost invariable that his ankle function impairment would progress slowly over the future years. He was of the view that post-traumatic arthritis was already present and treatment would be aimed at delaying or slowing its progress and its resulting dysfunction.

26.  Dr Chow was of the view that at the time of the examination the plaintiff’s impairment i.e. limitation of motion and early arthritis was assessed at 4% but that it would progress to a maximum of about 10% in 15 to 20 years’ time. The progressive impairment, he said, would be related to progression of the ankle arthritis, which would result in increasing pain and dysfunction, with increased frequency of joint swelling. The symptoms could be controlled by analgesics and anti-inflammatory medications. He would also require occasional physiotherapy and rehabilitation.

27.  Dr Chow was of the view that the plaintiff would not be suitable for jobs that required prolonged standing, walking or physical activities and had to settle for jobs that were largely sedentary.

28.  Dr Yu examined the plaintiff on 7 June 2001 almost 9 months later. His report is dated 28 June 2001.

29.  The plaintiff complained to Dr Yu of residual pain around his right ankle which was of an aching nature over the site of the fractures on the maleoli. The residual pain was said to be aggravated by prolonged standing, walking or running and was also aggravated by changes of weather. He told Dr Yu that he could walk or stand for about 45 minutes and run for about 10 minutes after which time his right ankle would ache. There was also tightness around his right ankle.

30.  On his examination of the plaintiff Dr Yu found that he was in good general health. His gait was normal and he was able to squat down fully. An inspection of his right ankle showed that the medial maleolus was prominent. No other deformity or malalignment was detected.

31.  He also saw the surgical scars which he said were well healed, soft and non tender.

32.  The right ankle’s range of motion was well restored with a mild (5˚) residual loss of motion in dorsiflexion.

33.  The subtalar joint motion was normal and equal on both sides.

34.  Dr Yu also measured the calf circumference and found mild wasting of the right calf muscles. The right calf circumference was 35.5 cm with the left calf circumference being 36.5 cm. There was a 1 cm difference.

35.  Dr Yu also found that the motor power, sensation and circulation of the right lower limb were normal. The right foot, right knee and right hip were normal on examination.

36.  Dr Yu’s opinion is set out in his report. He was of the view that the X-rays of the plaintiff’s right ankle revealed that the ankle mortise was well re-constructed apart from a slight valgus alignment due to mild shortening of the fibula and mild widening of the distal tibial fibular syndesmosis. This residual deformity accounted for the prominence of the medial maleolus of the right ankle on inspection.

37.  Dr Yu did not think that there was any significant thinning of the articular cartilage. He was of the view that at that time there was no evidence of osteoarthritis of the right ankle.

38.  He went on to explain that the right ankle’s range of motion was slightly decreased in dorsiflexion with a 5˚loss of motion when compared with the left ankle. The plantar flexion was normal. The residual stiffness was likely to be permanent. The right ankle’s range of motion was very well maintained and was compatible with near normal function.

39.  He was also of the view that the mild wasting of the right calf muscle was likely to be permanent. However, the motor power of the right leg and ankle was well maintained as well.

40.  Dr Yu was of the view that the plaintiff would be able to maintain good function of his ankle for a long time despite the mild residual deformity. He opined that the plaintiff would be fit for full constabulary duties provided he optimized his physical fitness by performing regular physical exercises.

41.  He was of the view that the chance of the plaintiff developing post-traumatic osteoarthritis of the right ankle was small and which he estimated to be a 5% chance in 20 to 30 years’ time.

42.  Dr Chow in his supplemental report dated 9 November 2001 commented on Dr Yu’s report. He was adamant that there was evidence of present osteoarthritis and future deterioration could not be doubted.

43.  Dr Chow disagreed with Dr Yu that the plaintiff would be fit for full constabulary duties because of the residual stiffness and pain which, in Dr Chow’s view, limited his function as a police constable. Dr Chow also opined that the anatomical derangement of the ankle joint invariably would lead to osteoarthritis and further deterioration with time and not just a 5% chance.

44.  Dr Lau examined the plaintiff almost 7 years later on 1 April 2008 as set out in his report dated 5 April 2008.

45.  According to what he told Dr Lau, the plaintiff could no longer enjoy basketball, soccer, badminton or jogging which he used to enjoy before the accident. He told Dr Lau that he swam every 4 to 6 weeks. His complaints to Dr Lau at the time of his examination were

“(1)  Persistent pain in his right ankle, disturbing his sleep for about 6 to 7 nights each month.  The pain is increased by :

−  walking for 15 minutes

−  standing for 15 minutes

−  climbing stairs and slopes

−  squatting

−  change of weather.

(2)  Stiffness of right ankle.

(3)  Weakness of right ankle.

(4)  Numbness around the scars over the right ankle.”

46.  On physical examination Dr Lau found that the plaintiff was walking normally, could squat fully, could walk on tiptoes and on heels, and could stand in a stable manner on either leg alone. The dorsiflexion of the right ankle joint was 10˚ less than the one on the left.

47.  The calf circumference measurements showed about 1.1 cm difference between the left and the right calf which was about the same as what Dr Yu found 7 years earlier.

48.  X-rays were taken and these showed that the previous fracture involving the medial malleolus and the distal fibula had solidly united in anatomical alignment. The bony bridge between the distal tibia and fibula had persisted. There was a mild narrowing of the joint space on the medial side of the ankle mortice. There was mild irregularity of the ankle joint surface in particular on the medial side.

49.  Dr Lau noted that according to the plaintiff, he was limited to indoor light duties since his return to work. He was still complaining of significant pain, stiffness and weakness of his right ankle.

50.  Dr Lau observed that from his physical findings and those of Dr Chow and Dr Yu 7 years earlier there was little change in the condition of the right ankle in the past 7 years. He said that the plaintiff was still observed to have mild limitation in the dorsiflexion movement of his right ankle. He was still having about 1 cm decrease in the calf girth of his right calf.

51.  Dr Lau agreed with Dr Chow that there was definite evidence of degenerative arthritis of his right ankle mainly on the medial side.

52.  He also agreed with Dr Chow that the plaintiff should avoid sports or physical activities associated with vertical loading or impact. He needed to avoid excessive stress to his right ankle so as to slow down the progression of the degenerative arthritis of his right ankle. He was of the view that the plaintiff was unfit to take up the regular duty of a police constable and was advised to stay in indoor duties.

53.  It is significant that when first seen by Dr Chow in September 2000 the plaintiff told him that he could stand or walk for about 2 hours before experiencing discomfort and pain over his right ankle. 9 months later he told Dr Yu that he could walk or stand for about 45 minutes before pain developed. 7 years later when examined by Dr Lau he told Dr Lau that he had persistent pain in his right ankle which disturbed his sleep for about 6 to 7 nights each month. This persistent pain was increased by, inter alia, walking for 15 minutes, and standing for 15 minutes. It seems from what the plaintiff had told Dr Lau his pain had worsened over the years.

54.  The plaintiff gave evidence that the pain has worsened since 2001. He said that he would feel pain within a shorter period of time after certain activities. I do not accept this part of his evidence. I do not believe him.

55.  Dr Lau said in cross-examination that his physical findings and the radiological findings as set out in his report would suggest that the plaintiff’s condition of his right ankle should be somewhat better than what the plaintiff described. Dr Lau also said that the plaintiff’s physical ability should be somewhat greater than what the plaintiff claimed. I accept Dr Lau’s evidence.

56.  In my view the plaintiff has somewhat exaggerated the condition of his ankle and the pain that he feels. No doubt the plaintiff suffered a serious ankle injury, the most serious type of ankle fracture. I am satisfied that he still feels residual pain but I do not believe his evidence that the pain has worsened in the intervening period between the examinations in 2001 and 2008. The objective evidence does not support this. I find that he has been exaggerating his symptoms and the pain in his right ankle.

57.  Dr Yu was of the view that the degree of degenerative arthritis was of a very mild nature. It seems to me, and I so find, that there was evidence of osteoarthris as set out in the report of Dr Chow and in the report and evidence of Dr Lau. The degree of degenerative arthritis could not have been significant. This is borne out by the finding by Dr Lau that in the interviewing 7 years after the plaintiff saw Dr Chow and Dr Yu there was little change in the condition of the plaintiff’s right ankle. There was little progression of the degenerative change of his right ankle in the intervening7 years as Dr Lau found.

58.  Although Dr Yu considered that the plaintiff was fit to undergo full constabulary duties it seems to me, and I so find, that the plaintiff was not fit to undergo full constabulary outdoor duties which would include being running, chasing and apprehending suspects some of whom may well be violent andwould struggle while resisting arrest. I prefer the evidence of Dr Lau to that of Dr Yu and find that the plaintiff is not suitable to do full constabulary duties with outdoor activities which would include chasing and apprehending suspects. Cheng also said in evidence that if an officer could not walk the beat on a prolonged basis he would not consider him as performing full constabulary duties. I accept his evidence. It is significant that for the past 8 years, as the plaintiff said and as I accept and find, he has been confined to indoor duties in the report room. I believe the plaintiff when he said that he has asked to be posted to different postings over the years but he has not been so posted.

59.  Kwok said, and I accept and find, that it was quite unusual for a junior officer to be 7 or 8 years in the same job as the plaintiff had been. He said that for a report room reserve a junior officer would usually be rotated to another job approximately one or two years or maybe longer but it would be quite unusual for him to remain in the same job for 7 to 8 years. It seems to me that it is likely that it was considered that the plaintiff was not suitable for some of the postings that he had requested because of his physical disability.

PSLA

60.  The plaintiff claims $460,000 for PSLA.

61.  I was referred to a number of authorities by counsel which I have considered. Each case, of course, depends on its own facts.

62.  Suffiad J in Chan Pik San v Wylam’s Service Ltd and others (HCPI 648 of 1995; 16 December 2002) said at paragraph 111 of his judgment that from the cases and awards that were cited to him the range of awards for ankle fractures and depending on the resulting disability vary from $150,000 to $400,000 for PSLA. I respectfully agree.

63.  Although I accept that the plaintiff has residual pain and stiffness in his ankle and that there is a mild degree of degenerative osteoarthritis I have found that he has somewhat exaggerated the condition of his right ankle and the pain that he suffers. I have, however, found that he is not suitable to do full constabulary outdoor duties because of his injuries.

64.  I accept that he can no longer enjoy basketball, soccer, badminton or jogging which he used to enjoy before the accident.

65.  It seems to me that a proper award for PSLA for the plaintiff is the sum of $350,000 which I award.

Loss of chance of promotion

66.  The plaintiff’s claim is that as a result of the injuries he has lost his chance to promotion to a higher rank. It is contended that he had at least a 10% chance for promotion to inspector and an even greater chance for promotion to sergeant and that the plaintiff has lost that chance (paragraph 6.3 of the revised statement of damages).

67.  In Liu Chun Kow Joe v Lee Sau Wing [2008] 3 HKC 433 Cheung JA said

“ Prospect of promotion

40.  The plaintiff claimed that as a result of the accident, he lost his chance of promotion to one higher rank, namely, Principal Officer.

Principles in assessing chance

41.  In Davies v Taylor [1974] AC 207 at 213, Lord Reid stated that

‘... You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can.  All that you can do is to evaluate the chance.  Sometimes it is virtually 100 per cent: sometimes virtually nil.  But often it is somewhere in between.  And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent.’

42.  Consistent with this approach, the English Court of Appeal in Allied MaplesGroup v Simmons & Simmons[1995] 1WLR 1602 at 1610 per Stuart-Smith LJ held that

‘ Questions of quantification of the plaintiff’s loss, however, may depend upon future uncertain events.  For example, whether and to what extent he will suffer osteoarthritis, whether he will continue to earn at the same rate until retirement, whether, but for the accident, he might have been promoted.  It is trite law that these questions are not decided on a balance of probability, but rather on the court’s assessment, often expressed in percentage terms, of the risk eventuating or the prospect of promotion, which it should be noted depends in part at least on the hypothetical acts of a third party, namely the plaintiffs employer.’

43.  This was expanded later in the judgment under the third category of situations which may arise where the plaintiff's loss depends upon the action of an independent third party.

44.  The three situations are best summarised by Otton LJ in Doyle v. Wallace[1998] PIQR Q146 at Q149 as follows:

‘(1)  In his first category fell cases in which the defendant’s negligence consisted of some positive act or misfeasance and the question of causation was one of historical fact, in which event proof on the balance of probability prevailed.

(2)  In the second category fell cases in which the defendant’s negligence consisted of an omission where caution depended not upon a question of historical fact but upon the answer to the hypothetical question ‘what would the plaintiff have done if there had been no negligence?’; here the answer is provided by the application of proof on the balance of probabilities.

(3)  In the third category fell cases in which the plaintiff’s loss depended upon the hypothetical action of a third party, whether in addition to action by the plaintiff or independently of it; here the plaintiff need only show that he had a substantial chance of the third party acting in such a way as to benefit him.  The Court of Appeal held that the plaintiffs needed to show only that there was a significant chance, which could be less than likely, that the third party would have been prepared to offer them this protection and held that the loss of such a chance had been made out and it was assessed at 50 per cent.’

For ease of reading I have numbered the three situations.”

68.  In Attorney General v Chun Yat Nam [1995] 1 HKC 218 Penlington JA said at page 240 that the question to be determined was whether there was a real prospect of promotion.

69.  It is for the plaintiff to show that he had a significant chance or a real prospect, which could be less than likely, of promotion to inspector or at least sergeant, but for the accident and the injuries he sustained.

70.  During his training at the Police Training School the plaintiff had demonstrated that he was a promising officer such that he was included in the Early Identification Potential Officer Scheme (“EIPO”). The officers who are included in the EIPO scheme would be subject to six-monthly reviews for a period of 2 years. By that time the Divisional Commander would review the officer’s progress and consider whether he merits a recommendation to be placed in the Potential Officers Scheme.

71.  The plaintiff was, however, injured whilst serving as a police officer and during his period of sick leave it appears from his evidence that he did not have the regular six-monthly reviews. I accept his evidence on this.

72.  Be that as it may, it is clear that although an officer may be included as an EIPO he stops being an EIPO after a lapse of 2 years. Kwok said, and I accept and find, that the six-monthly reviews for EIPOs would automatically lapse at the end of the 2 years’ period. The officer would no longer be treated as an EIPO after that time although he would still be eligible to be recommended as a Potential Officer as would all other police constables. His evidence was not challenged and I accept it.

73.  The plaintiff has never been recommended to become a Potential Officer.

74.  Because of his injuries the plaintiff was classified as a Health Impaired Officer (“HIO”). It is common ground that the police force has a policy of non-discrimination of HIOs. As Kwok said, a HIO will not be discriminated during any promotion exercise in the force. The fact that an officer is classified as a HIO will not affect his eligibility for promotion. I accept his evidence.

75.  The plaintiff was adamant in evidence that his promotion prospects have been affected by his injuries. He maintained his stance that because of his injuries his chance of being deployed to different postings was limited and that adversely affected his chance of promotion.

76.  The plaintiff’s service profile at Bundle D page 95 shows all the postings of the plaintiff from the time he joined to 2008. Most of the postings were in the report room. On 8 June 2000 and 4 April 2007 he was posted to patrol sub-unit. However, as the plaintiff said and as I accept, this was also in the report room where he was performing indoor duties. It seems that the plaintiff has been confined to indoor duties in the report room for substantially the whole time after he resumed his duties following the accident from September 2000 to March 2009.

77.  The criteria for promotion to sergeant are set out in the evidence of Kan. As he said, without being assigned to different postings the plaintiff’s chance of promotion would not be affected at all. Although marks are given for a service profile showing broad experience, marks are also given as compensation for deficiencies in obtaining e.g. postings which are outside the candidate’s control.

78.  Kan also made it clear in evidence that in the promotion exercise if an officer lacks sufficient postings through no fault of his own he will be compensated for this. He would not lose marks because of lack of postings. He was not challenged as to this. I accept his evidence.

79.  Kan also gave evidence that there was no posting criteria for promotion to inspector. Inspectors could be recruited from outside the force by a direct entry application or internally within the force. For officers within the force posting was not a criterion for such officers to be placed in the Potential Officers Scheme for promotion to inspector. Officers would be eligible for promotion if recommended to be a Potential Officer. I accept his evidence.

80.  Cheng also gave evidence that the basket of postings in the plaintiff’s service profile would be good enough for the promotion criteria to sergeant. He was not challenged on this. I accept his evidence.

81.  It is clear on the evidence of the plaintiff and the annual assessments of him from his senior officers that the plaintiff has an immaculate service record. In the assessment of the appraising officer in the annual report from June 2007 to May 2008 the plaintiff was described as the top of the cream in the force.

82.  The plaintiff’s case is that because of his injuries he has not been able to gain sufficient exposure and experience that he would otherwise have gained by different postings in the course of his career as a police constable.

83.  The plaintiff has, after two attempts, passed the qualifying examination for promotion to sergeant. He passed the qualifying examination in 2003. However, as shown in exhibits D1 and D2, the plaintiff elected not to be considered for promotion to the rank of sergeant in the option forms dated 28 May 2004 and 5 May 2005.

84.  The plaintiff explained in evidence that his supervisor had advised him that it was better that he did not have his case considered for promotion as he could not be deployed to other postings and would not be recommended for promotion. The plaintiff also said that because more than 10 of his seniors had told him from time to time that the chance of promotion was very slim and almost zero in his case because of the lack of different postings he did not opt for consideration for promotion to sergeant. I do not believe his evidence on this. He was vague and evasive when asked for the names of the officers who had so informed him. This would have been important evidence yet no mention of his seniors advising him not to put himself forward for promotion to sergeant was ever mentioned in his witness statements. There was no satisfactory explanation for this omission in his witness statements.

85.  The plaintiff also said that the reason that he took the qualifying examination for promotion to sergeant was that it was compulsory for all officers to take it after reaching a certain seniority. I do not believe the plaintiff on this matter. Cheng said, and I accept, that officers could not be forced to take the examination and that it was a matter of choice for the officer to do so. That must be right. It is absurd, in my view, to suggest that it was compulsory for all officers to take the qualifying examination for promotion to sergeant after reaching a certain seniority.

86.  The plaintiff’s service profile shows that he has acted as sergeant a number of times. In view of the glowing reports that he has received, had he elected to be considered for promotion to sergeant it seems to me that it is probable that he would have by now been promoted. At least there would have been a substantial chance that he would have been promoted. But he has declined to be considered for promotion to sergeant.

87.  It seems to be that the plaintiff had a misconception that a lack of different postings made it difficult if not impossible for him to be promoted. If he got this impression from talking with colleagues or his seniors he was misinformed. It is clear on the evidence called on behalf of the defendant that lack of different postings in the case of an officer like the plaintiff who was confined substantially to indoor duties through no fault of his own would not count against him in the criteria for promotion . I so find.

88.  I would also observe that on the evidence of Kan, which I accept, the plaitniff’s reluctance to be considered for promotion to sergeant would be a factor to be considered as to whether Kan would recommend him to be a Potential Officer for promotion to inspector as it may mean that he was not committed or that he lacked supervisory skills.

89.  In my judgment the plaintiff did not have a significant chance or a real prospect of being promoted to inspector. It seems to me that he had a substantial chance of being promoted to sergeant but he chose not to be considered for such promotion. The plaintiff has failed to establish that he has lost the chance of promotion to inspector or sergeant as a result of the injuries. No award is made under this head of claim.

Loss of chance of increased pension

90.  The claim is made on the basis that having lost his chance of promotion he has also lost his chance of an increased pension which would have accrued to him with a higher rank in the police force. As I have found that he has not lost a chance of promotion, I find that he has not lost the chance of increased pension. No award is made under this head of claim.

Loss of chance of increased housing allowance

91.  This claim is also made on the basis that he has lost his chance of promotion. The claim is that he has lost the chance to be entitled to an enhanced Home Finance allowance which would have accrued to him with a higher rank. I find that he has not lost a chance of increased housing allowance. No award is made under this head of claim.

Loss of earning capacity

92.  The plaintiff is still employed as a police constable in the force. He has not suffered any loss of earnings. His retirement age is 55 years. He is now 35 years old. When he retires he would still have a working life beyond age 55 years. In view of his injuries which have confined him to indoor duties for all these years after his return to work it seems to me that he would be disadvantaged in the labour market when he retires from the force. It seems to me that the sum of $100,000 claimed is reasonable for this head of claim which is the sum I award.

Loss of congenial employment

93.  I am satisfied that the plaintiff is unable to be deployed to various operational postings in the police force due to his injuries. I accept the plaintiff’s evidence that because of his injuries and the pain that he feels he can no longer be a beat officer or be transferred to various operational postings. This is borne out by the fact that despite his requests for transfers these have not been met over the years. He has been confined substantially to indoor duties in the report room. Being confined to indoor duties does not provide the plaintiff with the same job satisfaction as he would have enjoyed with operational and outdoor postings. I am satisfied that the amount claimed in the sum of $100,000 is reasonable for this head of claim. I award $100,000 for this head of claim.

Future medication

94.  The plaintiff has been prescribed glucosamine for his osteoarthritis by his treating doctors. He is likely to require this for the future. Dr Lau did not personally prescribe glucosamine for his patients. Dr Yu did and, according to him, so did other orthopaedic surgeons. I find that the claim for the cost of future medication is reasonable. The plaintiff claims $33,680 for glucosamine. He also claims the sum of $3,000 for analgesics for pain relief. I am satisfied that the total sum claimed for future medication in the sum of $36,680 is reasonable and I would award this sum under this head of claim.

Conclusion

95.  I award damages to the plaintiff as follows :

96.  I give judgment to the plaintiff against the defendant for damages in the said sum of $438,182.63. I also give judgment for interest on the award for PSLA at 2% per annum from service of writ to judgment and on the award of special damages at half judgment rate from the date of the accident to judgment.

97.  I also make an order nisi that the defendant do pay the plaintiff his costs of the action such costs to be taxed in the District Court scale with a certificate for counsel. The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.

Mr Robert Y. H. Pang, instructed by MessrsChristine M Koo & Ip, for the Plaintiff

Mr Tim Kwok, instructed by the Department of Justice, for the Defendant