David John Slater v. Commissioner of Police

HCPI 646/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 646 OF 2012

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J U D G M E N T

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1.This is an assessment of damages in an action for damages for personal injuries suffered in an accident at work that took place on 22 February 2011. Although liability was initially contested, interlocutory judgment for damages to be assessed was entered against the defendant on 19 February 2016.

2.The plaintiff, who was born on 7 February 1960, was 51 years of age on the day of the accident.  He is now 57 years of age.  The plaintiff had joined the Marine Region of the Hong Kong Police in 1987, and had continued to serve the Marine Region up to the time of the accident.  At that time, he was a Chief Inspector posted to the Marine West Division. He had been transferred to work in that Division in September 2010. As a Chief Inspector at that Division, he was responsible for the daily operational deployment of various police launches and vessels, and some 300 subordinates from constable to inspectorate rank.  He was also responsible for their training and assessment on all types of these vessels and launches.       

3.At the time of the accident, the plaintiff had been participating in a Marine Police Combined Operational Tactics Training Course. The accident occurred on the second day of the course.  He was assigned as a crew member of a Divisional Fast Patrol Craft.  He was responsible for acting as a lookout. His seat was behind the coxswain at the port side of the vessel.  In order to see over the coxswain and the panel of the vessel, he had to remain standing.

4.Sometime after 3 p.m. on 22 February 2011, the patrol craft was near the Hong Kong Macau Ferry Terminal.  At the time, the plaintiff was standing at the port side, holding onto a handrail and turning backwards to look at the rear.  Suddenly, his patrol craft was hit by a big wave.  The upper part of his body was forced towards his left side while the lower part was forced towards the right.  Although he did not fall onto the ground or bump onto anything, he felt a sharp pain at the low back region and on the left side of his buttock.  He bore the pain and completed his duties that day.  He went home to rest and did not seek immediate medical treatment.

5.The next morning, he woke up with low back pain and his back was very stiff.  He was assigned to work in the control room that day, and he suffered pain in his lower back after sitting for some time.  On the next day, the pain and stiffness of his lower back became more severe and he sought treatment at the Violet Peel General Out-patient Clinic.  When he sought further treatment from the Hong Kong Families Clinic at Tang Chi Ngong Specialist Clinic, he was referred to the orthopaedic specialist clinic at Queen Mary Hospital. 

6.By reason of the long waiting time, he was only given an appointment at the orthopaedic clinic at Queen Mary Hospital in May 2011. As he was scheduled to make a trip to Phuket, Thailand that month, he decided to obtain an MRI scan at the Bangkok Hospital Phuket. After an MRI scan was performed, he was told that there was a problem with his intervertebral disc. He was recommended to take medication for nerve pain and also to have a steroid injection to the spine, and he was also advised that an operation might be required if these treatments did not work.  He did not receive any of these treatments in Thailand, and, on returning to Hong Kong, obtained another appointment at the orthopaedic clinic at Queen Mary Hospital, this time on 16 September 2011. 

7.He was not able to resume work by reason of his persistent back pain and he was granted sick leave during this period of time.  The orthopaedic surgeon in Queen Mary Hospital recommended physiotherapy and occupational therapy. However, there was no significant improvement and these therapies were stopped from December 2011.  Operative treatment was not recommended to him.

8.After the accident, he also sought treatment from the clinical psychologist of the Police Force on about 8 occasions.  In November 2011, he felt sudden chest pain and was examined at the Queen Mary Hospital Cardiac Clinic.  A CT coronary angiogram showed some narrowing of a coronary artery.  He was prescribed with statins and aspirin. 

9.He had previously been in good health, and did not have any previous injury to or problems with his back prior to the accident in question.  He enjoyed sports and was a rugby and golf player.  He used to play rugby once a week and golf every month. 

10.In his witness statement made on 22 April 2013, the plaintiff said that, although more than 2 years had passed after the accident, he still had constant pain and discomfort in his back.  He could only sit for about 20 minutes.  When he sat for longer than 20 minutes, he had to use his arms to support his upper body in order to relieve the pain. He encountered difficulties walking up and down stairs and on uneven surfaces. Because of his back injury, he had to give up rugby and golf.

11.The plaintiff was jointly examined by the orthopaedic specialists, Dr. Arthur Chiang Si Chung, instructed by the plaintiff’s solicitors, and Dr. Yeung Sai Hung, instructed by the defendant’s solicitors.  Their examination took place on 10 April 2012 and their Joint Report was dated 28 May 2012.  He complained to the doctors of constant pain, throughout the waking hours, in his low back region. He estimated that he could sit for about 20 minutes, stand for about 20 to 30 minutes and walk for about 40 minutes. During their physical examination, the doctors noted that he was able to sit throughout their assessment, which lasted more than an hour, although he frequently used both hands to support his upper body.

12.There was no significant wasting of his left lower limb muscles.  Straight leg raising was reduced to 35 degrees on the left side and 45 degrees on the right side. However, when his attention was distracted and the test repeated in the sitting position, he was able to sit in a position equivalent to 70 degrees of straight leg raising.  There was no swelling and deformity at the spine.  There was tenderness at the lumbosacral junction and both sacro-iliac joints.  There was no paraspinal muscle spasm.  Spinal movements were very restricted.  Waddell’s tests for non-organic cause of pain was positive for head compression, shoulder compression and rotation of pelvis.  He also complained of back pain when femoral stretch test was performed for each side.

13.Touch sensation of the right sole and toes was reduced by 20-30% and decreased by 10% at the medial aspect of the dorsum of the right foot. On the left side, it was reduced by 20% at the sole, 20-30% at the toes and 10% at the lateral aspect of the dorsum of the left foot.

14.The joint experts reviewed the MRI that had been taken at Bangkok Hospital Phuket on 27 May 2011 and confirmed that the findings in the MRI report were correct, namely, that there was a moderate degree L5/S1 disc extrusion, probably left S1 nerve root compression. X-rays taken on 10 April 2012 showed degenerative changes in the form of mild marginal osteophytes in the whole lumbar vertebrae.  No instability was noted. These findings were similar to the findings from the x-rays taken in the Ruttonjee Hospital on 1 March 2011.

15.There was a substantial amount of agreement between Drs. Chiang and Yeung.  They agreed that the plaintiff suffered from sprain injury to the low back and prolapsed intervertebral disc at the level of L5/S1, and that the sprain injury and prolapsed intervertebral disc were consistent with the circumstances of the accident as described by the plaintiff.  They also agreed that there was no known pre-existing problem with his lumbar spine.

16.A normal intervertebral disc acts as a shock absorber, reducing the force transmitted across the vertebral bodies.  It consists of jelly-like nucleus pulposus surrounded by circumferential fibres, the annulus fibrosus.  Injury to the spine may damage the annulus fibrosus, resulting in weakness or even tear. Then, the nucleus pulposus will bulge or even herniate through the annulus.  If the damage is not so severe and the bulge of the disc is not compressing onto the adjacent nerve roots, the patient will suffer from pain at the back.  With more severe injuries, the disc may herniate and compress against the nerve roots and the patient will have pain along the distribution of the nerve root concerned.  In the lumbar spine, the commonly affected nerve roots are the L4, L5 and S1 nerve roots, and the patient will suffer from pain radiating down to the corresponding areas of the foot.  For more severe compressions, the functions of the nerve may be affected, resulting in sensory impairment, motor weakness of the lower limb and also impairment of sphincter functions.

17.Drs. Chiang and Yeung agreed that the plaintiff’s main symptom was pain at the low back region, with mild decrease in sensation of both feet.  The MRI findings were in line with his symptom of low back pain that was more on the left side of the gluteal region.   They agreed that there were features of non-organic cause of pain.  The majority of patients with these features would improve when the compensation issues were settled.  Prognosis was favourable although there was a risk that, in future, the disc herniation may increase and cause nerve compression and neurological dysfunction, which might require surgical intervention.  However, it was not possible to predict whether the plaintiff was likely to require operative treatment in the future.  They advised the plaintiff to attend an orthopaedic clinic about once every 3 to 4 months, and when there was exacerbation of pain, in order to ascertain whether there was any deterioration of nerve root compression that might require intervention.  Costs of such follow-up in the private sector would be around $10,000 a year.

18.Drs. Chiang and Yeung agreed that the sick leave that the plaintiff had been received from 24 February 2011 up to 20 April 2012 was appropriate for his condition.  They also agreed that the sick leave up to the medical assessment board scheduled to take place in June 2012 was justifiable.  They were of the opinion that he would have difficulty with frequent or prolonged walking.  Activities that required sudden and fast movements should be limited in order to prevent progression of the disc extrusion and possible nerve root compression.  They agreed that the plaintiff could not return to his pre-accident operational duties that were physically very demanding.  However, they were of the opinion that he should be able to take up management type of office duties.

19.I accept the expert opinion of Drs. Chiang and Yeung.  There was very substantial agreement between them.  I find that the plaintiff has suffered pain in his low back region since the accident and will continue to do so periodically but not to the extent that he described to the orthopaedic experts.  I find that he has suffers from mild decreased sensation in both feet.  He also suffers from a real risk that his disc extrusion might get worse and result in nerve compression.  In addition, he suffers from a serious loss of amenities in not being able to play rugby and golf anymore.

Pain, Suffering and Loss of Amenities (“PSLA”)

20.I did not derive any assistance from the authorities cited to me by counsel on the quantum of damages on PSLA.  I have found the following cases to be of assistance:

(1) In Razaq-Akhtar v Wang Hoi Transportation Ltd, HCPI 303/2007, 24 October 2008, Master Lung, as he then was, awarded $280,000 for PSLA to the plaintiff who sustained injury to his back while carrying carton boxes weighing about 35 kilograms each.  There was tenderness on his lumbosacral spine, reduced movement range of the trunk, limited straight leg raising, and persistent back pain which occasionally radiated down his left thigh to his knees.  An MRI taken 9 months later revealed L5/S1 disc protrusion.  According to the medical report, the mild disc prolapse had no bone lesion, and surgical intervention was not likely to improve his back pain significantly.  The plaintiff could no longer return to his pre-accident work which required heavy lifting.

(2) In Singh Inderjeet v Ho Chun Bong, HCPI 874/2007, 11 May 2009, Burrell J. awarded $300,000 for PSLA to the plaintiff who had been injured in a traffic accident and sustained injury to his back, including a mild posterior L4/5 disc bulge, and soft issue neck damage.  He was assessed to suffer a total impairment of the whole person at 7%.  He was also diagnosed to suffer from Post-Traumatic Stress Disorder (“PTSD”) and Major Depressive Disorder (“MDD”).  The learned Judgefound that the plaintiff’s injuries fell short of the ‘serious injury’ category.  He found that his back pain had subsisted but was exaggerated.  He also found that the plaintiff’s PTSD and MDD were genuine and persisted in a mild form. They were treatable and would improve. 

(3) In Liu Shui Bik v Countfortune Limited, HCPI 60/2008, 17 March 2010, Saunders J awarded $450,000 for PSLA to the plaintiff who suffered injury to her back while lifting heavy weights on a construction site.  After the accident, she was observed to suffer from tenderness and muscle spasm over her right side and lower back region with a decreased range of movement.  Some 10 months later, an MRI scan showed a mild prolapse at the L5/S1 level of the plaintiff’s spine.  The orthopaedic experts were of the view that the plaintiff suffered from an 8% impairment of the whole person.  The psychiatric experts agreed that the plaintiff suffered from a depressive episode in reaction to the stresses and physical consequences of the accident and the associated psychosocial stresses and conflicts of her circumstances.  The learned Judge found that the plaintiff’s back injuries resulting in a prolapsed disc were painful, restricting and interfered significantly with the normal enjoyment of life. That condition was aggravated by a psychiatric overlay and depression.  He found that the plaintiff’s continuing level of being in discomfort was genuine.

21.Taking into account the above mentioned awards in similar cases, I have no difficulty awarding $250,000 as damages for PSLA, being the amount claimed by the plaintiff in his Amended Revised Statement of Damages dated 28 July 2014.  The last two mentioned cases were more serious because they included a psychiatric component. 

22.I ought to mention, by way of a postscript, that in Wong Man Kin v. Golden Wheel (C&HK) Transportation Co. Ltd., HCPI 913/2011, 17 July 2015, I had held that awards for damages for PSLA in personal injury cases falling within the Serious Injury category started at $510,000.  Inflation has not been high in the past 2 years but even so awards for damages for PSLA in personal injury cases falling within the Serious Injury category  would start at $530,000 today[1]. In 2008, when Razaq-Akhtar v Wang Hoi Transportation Ltd, HCPI 303/2007, was decided, awards for damages for PSLA in personal injury cases falling within the Serious Injury categorystarted at $413,000[2]. The increase in the level of awards in the 9 years from 2008 up to the present time has been to the order of 28%.  Applying the same percentage of increase to the award of $250,000 would produce the sum of $320,000 today.  I cannot award this amount to the plaintiff as it has not been claimed in the Revised Statement of Damages. Practitioners are reminded to have regard to the rise in the level of awards for damages for PSLA when updating their clients’ Statements of Damages. 

Pre-trial Loss of Earnings

23.I have accepted the joint expert opinion of Drs. Chiang and Yeung that sick leave up to June 2012 was justifiable.  I find that the plaintiff was fit to return to work from July 2012 undertaking managerial office duties. He could no longer to return to his pre-accident operational duties that were physically very demanding.

24.Notwithstanding that he could return to perform managerial office duties from July 2012, the plaintiff was on full pay sick leave up to 15 November 2013.  Police officers are ordinarily entitled to 2 years’ full pay sick leave. Thereafter, a police officer has to apply to the defendant for an extension of full pay sick leave up to a maximum further period of 12 months.   A fourth year of full pay sick leave can only be approved by the Secretary for the Civil Service and will only be granted in exceptional circumstances. From the commencement of his sick leave up to 15 November 2013, the plaintiff was posted as a reserve officer and he was not required to work.  He has not suffered any loss of earnings and any loss of fringe benefits from the day of the accident up to 15 November 2013.

25.The usual retirement age in the Hong Kong Police Force is 55.  The plaintiff would have been 55 years of age on 7 February 2015.  He claimed pre-trial loss of earnings and loss of fringe benefits from 16 November 2013 to 6 February 2015, a period of about 14 months and 21 days.

26.I find that, but for the accident, the plaintiff would have worked until he reached the age of 55, and that his last day of work would have been 6 February 2015.  I accept the evidence of the plaintiff that it had always been his intention and his wife’s intention that, when he reached the age of 55 and retired, she would move to live in her house in Thailand while he would carry on working in Hong Kong or somewhere in Asia[3]. Upon the rejection of the plaintiff’s application for full pay sick leave up to 21 February 2014, which I deal with below, the plaintiff had written to the defendant by memorandum dated 10 January 2014 stating, among other matters, as follows:

“10. I am forced at present, due to my wife’s insistence, to apply to resolve my present contract in order to finish my service on 2014-02-22; this is subject to a separate application. In the last thirteen months my wife has undergone major surgery on two occasions; to have a kidney stone removed in the first instance and the left kidney removed in the second. For the first instance we had to pay for my wife to attend private medical treatment in Thailand due to the tardiness of the Hospital Authority in arranging a consultation with a specialist. In the second she had to undergo keyhole surgery in Hong Kong to have her left kidney removed as it had failed due to the original kidney stone.

11. As a result of the above my wife no longer has any confidence in the welfare and support systems that I would enjoy with continued service in the Hong Kong Police, and is insistent that she will move to our house in Thailand. In order for me to facilitate and finance that I must now apply for resolution of agreement in order that I may move all our furniture and belongings to Thailand for use in the house there. I would also have to pay for any future medical expenses as she would not wish to return to Hong Kong to undergo the same humiliation and poor treatment.

12. Originally I had planned to remain with the Hong Kong Police until 55 and then enjoy the salary from my accumulated leave after that. As we are now, effectively, leaving one year early and with the impact of my injury on potential future employment it is essential that my salary is paid up to the date of the termination of my service.”[4]

Although the cessation of full pay sick leave and his wife’s health issues made him consider leaving Hong Kong in January 2014, I am satisfied that, if this accident had not occurred, he would have continued to work as a Chief Inspector of the Marine Region until he reached the age of 55, as he clearly said in §12 of the memorandum quoted above, notwithstanding his wife’s health issues.

27.On 12 December 2013, the plaintiff applied for mutual resolution of his employment contract.  He did so less than a month after his full pay sick leave came to an end.  It should be noted that he had already commenced these proceedings on 24 August 2012 asserting in his Statement of Damages dated 24 August 2012[5] that, owing to his injuries, he could no longer take up operational duties[6].  The reason he applied on 12 December 2013 for mutual resolution of his employment contract was because he had made an application on 19 November 2013 for extension of his full sick pay sick leave up to 21 February 2014, and he foresaw that this would be the final extension of full pay sick leave that would be given to him[7].  Clearly, the plaintiff was hoping to be granted full pay sick leave up to 21 February 2014 and, on that basis, he applied mutual resolution of his employment contract to take effect on 22 February 2014.  However, his hope and expectation was not realized.

28.As it turned out, the application for extension of full pay sick leave to 21 February 2014 was rejected on 3 January 2014 and again on 10 January 2014. The application for mutual resolution of his employment contract was approved on 6 February 2014 and the resolution became effective from 22 February 2014.  Accordingly, the plaintiff’s employment contract was mutually terminated on 22 February 2014. Although the plaintiff’s full pay sick leave ceased on 15 November 2013, he did not return to work and, instead, he used his accumulated leave in the period immediately following 15 November 2013. He was entitled to 262 days of accumulated leave which expired on 4 August 2014, about 5 months after his employment came to an end.

29.As he has received full sick leave paid from July 2012 to 15 November 2013, he did not suffer any loss during this period.  I have to determine what, if any, pre-trial loss of earnings and loss of fringe benefits the plaintiff has suffered for the period from 16 November 2013 to 21 February 2014, and for the period thereafter from 22 February 2014 until 6 February 2015, the day he would have retired from the Hong Kong Police had the accident not occurred.

30.I have already found that the plaintiff was fit to return to office managerial duties from July 2012.  I do not place any weight on the sick leave certificates issued to the plaintiff on and after 15 November 2013.  On that day, a sick leave certificate was issued to the plaintiff from the Queen Mary Hospital for a period from 15 November 2013 to 28 February 2014 and, on 28 February 2014, a sick leave certificate was issued from Queen Mary Hospital to the plaintiff for the period from 28 February 2014 to 5 August 2014[8]. Medical notes in support of these two sick leave certificates have not been produced.  The last medical note produced was the one dated 23 August 2013 which granted sick leave from 23 August 2013 to 15 November 2013[9]. I have found that the plaintiff was fit to perform managerial office duties from July 2012. I do not place any weight on these 2 sick leave certificates insofar as they purport to suggest that the plaintiff was not even fit enough to perform managerial office duties from 15 November 2013 to 5 August 2014. No application was made for Drs. Chiang and Yeung to reconsider, in the light of these further sick leave certificates, their opinion on the proper length of sick leave that ought to have been granted to the plaintiff.  Indeed, the plaintiff commenced employment with Advanced Merchant Payments Ltd. (“AMP”) on 3 June 2014 as Director of Compliance and Loss Prevention earning $67,000 per month[10], even before the sick leave granted by the second of these certificates had expired.

31.The plaintiff explained in his evidence that if an officer is still on his retirement leave, he has to apply to take up outside employment but, because AMP had an immediate project they wanted him to do, he had applied for permission to take up AMP’s employment before his retirement leave expired[11]. I infer that he was granted the requisite permission. The plaintiff has been employed by AMP continuously from 3 June 2014 up to the day of trial on 14 June 2016.  He gave evidence at trial that he was not aware of any real or substantial risk that AMP would terminate his contract of employment[12].  Mr Thomas DeLuca, the chief executive officer of AMP, also confirmed this[13].

Loss of Earnings from Part-Time Work at AMP

32.This was not the first time that the plaintiff had worked with AMP.  During the time that the plaintiff had been employed as a Chief Inspector by the defendant, he had also undertaken a part-time job as a security consultant at AMP.  By reason of the fact that he was employed by the defendant, the plaintiff could only take up this outside work after obtaining approval from the defendant to do so.  Such approval had been granted in the past but revoked on 20 July 2011.  Although the plaintiff had been on sick leave almost continuously from 31 May 2011 up to 20 July 2011, he had been able to continue at this part-time job during this period of time earning $20,000 per month.  Upon the revocation of the approval, the plaintiff resigned from this part-time employment on 21 July 2011.

33.In the Amended Revised Statement of Damages, the plaintiff claims damages for pre-trial loss of earnings from this part-time job from 1 August 2011 to 2 June 2014 in the total sum of $725,900 (HK$20,000 x 1.05 x 1,037/30 days).

34.In the plaintiff’s opening and closing submissions, the claim was enlarged to a claim for $899,500 being a claim for damages for loss of earnings from part-time employment with AMP from 1 August 2011 to 6 February 2015, when he would have retired from the Police Force if the accident had not occurred (HK$20,000 x 1.05 x 1,285/30 days).  I am unable to entertain this enlarged claim as no application was made either before, or at trial, to further revise the Amended Revised Statement of Damages to plead this enlarged claim.

35.In the plaintiff’s closing submissions, an alternative claim has been made in the sum of $637,700, being a lesser sum than the amount claimed in the Amended Revised Statement of Damages. The alternative claim being made was a claim for loss of part-time earnings from 10 August 2012 to 6 February 2015 ($20,000 x 1.05 x 911/30 days), on the footing that permission ought to have been granted to the plaintiff to resume this part-time work from 10 August 2012.

36.Two reasons have been given in the memorandum dated 20 July 2011, signed by one, Kong Sai-cheong, for the withdrawal of approval to engage in outside work.  The first reason was that AMP was then the subject of an investigation for lending money at an excessive interest rate and, as such, the plaintiff’s continued employment by AMP would be in direct conflict of his duty as a Chief Inspector of Police, and might be a source of embarrassment to the Government.

37.The memorandum also stated at §6:

“6. I wish to also highlight the fact that you are currently on sick leave following an alleged injury on duty, which precludes you from working in your current posting as ADVC ADM MEDIV, and which is (sic) it is considered should also preclude you from undertaking outside work, particularly that which involves site visits, as you have stated in your ‘Justification for continued part time employment’.”

38.I have already found that the plaintiff was fit to return to managerial office duties from July 2012. By an email dated 13 August 2012 to Senior Superintendent Fung Wai-kin, Terry, the plaintiff stated as follows[14]:-

“I refer to my interview with your goodself on the afternoon of 10^th August 2012 in your office when you informed me that the investigation into my paid outside employment with Advanced Merchant Payments had been completed and that no disciplinary offences had been committed by me; and to the memo (6) in LM (1/2011) in MAR 164/13 VIII PER d.d. 2011-07-20. The initial reason that this approval was subject to re-evaluation was that the Advanced Merchant Payments was then under investigation for ‘Lending Money at an Excessive Interest Rate’ (para 2 & 3 of above quoted memo); this allegation has been fully investigated and found to be false. I must highlight here that I did apply for permission to work for this Advanced Merchant Payments in accordance with both C.S.R.’s and P.G.O’s and that approval was given by the Commissioner of Police, this authority being devolved to a Senior Superintendent of Police who considered that there was no conflict of interest, and that approval was initially given and then renewed six months later. In view of the aforementioned facts I must therefore conclude that there should now be no obstacle to my taking up this employment again.”

39.By his email dated 13 August 2012, Senior Superintendent Fung responded as follows[15]:-

“Thanks for bring your thoughts to my attention. To be honest, the purpose of SL [i.e. sick leave] is to allow the officer concerned to have time to rest and recover quickly so that he/she can resume normal duty a.s.a.p. In your situation, I prefer you to engage into something good to your health according to the advice of your doctor/psychologist, e.g. volunteer work with NEC etc… I don’t think any outside work will be appropriate at this stage hence I won’t consider it.”

40.I find that the allegation that had been made against AMP had been fully investigated and was not proceeded with any further. I accept the evidence of Mr Thomas DeLuca that the investigation into AMP was closed sometime after July 2011[16]. Apart from one question put to Mr DeLuca, he was not cross-examined on his evidence.  In his email to the plaintiff, Senior Superintendent Fung did not deny that the assertion against AMP had been fully investigated and found to be false.  Further, the defendant has not disclosed any document to suggest otherwise.

41.The plaintiff was physically fit to return to part-time work with AMP in August 2012.  Under the terms of his employment he was unable to do so without the approval of the defendant.  His inability to return to part-time work with AMP was caused entirely by the defendant’s unwillingness to grant the requisite approval, as can be seen from the email sent by Senior Superintendent Fung on 13 August 2012.  The inability of the plaintiff to return to part-time work with AMP in August 2012 was not caused by any injury suffered by the plaintiff in the accident complained of in these proceedings.

42.Whether or not the refusal of permission by the defendant for the plaintiff to work for AMP is a breach of the terms of the plaintiff’s contract of employment by the defendant or is a civil wrong on the part of the defendant, which is actionable by the plaintiff, is a matter that I am not seized with and, accordingly, cannot adjudicate upon.  The Statement of Claim filed in this action was a standard form pleading claiming damages in negligence, breach of the implied terms of the contract of employment, and breach of occupier’s liability for causing personal injuries to the plaintiff.  The interlocutory judgment for damages to be assessed requires the court to assess the loss and damage caused to the plaintiff in consequence of the personal injuries the plaintiff has suffered. As I have found above, the plaintiff’s inability to return to part-time work with AMP was caused entirely by the defendant’s unwillingness to grant the requisite approval and was not caused by any personal injury he had suffered in the accident in question.

The Effect of the Mutual Termination of Contract Employment on the Plaintiff’s Claims for Loss of Earnings and Fringe Benefits

43.The defendant has asserted in his Amended Answer that, given the nature of the plaintiff’s injuries, but for his application for mutual resolution, it was likely that he would be able to be accommodated, with a modified post within the Police Force if necessary, for the rest of his career, from when he returned to work until he reached his retirement age at 55, and that the plaintiff would suffer no loss of earnings prior his retirement age at 55, if he remained in his current position undertaking modified duties.[17]

44.Mr Lee Ting Kwok, who is a Chief Inspector of Police attached to Marine Police Training School, was called to give evidence for the defendant.  I accept his evidence that[18]:

“17.  HKPF has a well-developed system for the management of health-impaired officers (“HIOs”).  This system has been established with a view to facilitating the rehabilitation and re-integration into the Force of these HIOs wherever possible so that they can continue to contribute their best to the Force despite their impaired health.

18. As at 31 December 2012, there were 625 HIOs in the Force and they were accommodated within the Force. In particular, there are 6 officers with spinal injury and 2 of them are wheel-chair bounded, 5 other officers having limb impairment and need to walk with sticks and 3 officers with foot/toe amputated and 2 of them are equipped with prosthetic foot.  These officers are currently engaging on active service within the Force.  Given the nature of the Plaintiff’s alleged injuries, it is anticipated that he would be able to be accommodated, with a modified post within the Force if necessary, for the rest of his career when he returns to work.” 

I also accept the evidence he gave under cross examination[19] and re-examination[20] that, upon the conclusion of an officer’s sick leave, he would be required to report to his supervisor and ask for the assignment of a post.  There was a Superintendent and a Chief Inspector of Police at Police Headquarters responsible for the arrangement of these reserve police officers to see whether or not they should remain there or be deployed elsewhere.  An officer who had finished taking vacation leave would usually return to the post he had before he started taking his vacation leave.  If a police officer has finished taking a long sick leave, then it would be the team at the Headquarters who was responsible for the deployment of such a police officer.  Mr Lee gave evidence, which I accept, that the plaintiff had an option, upon his full pay sick leave ending on 15 November 2013, to come back to work on 16 November 2013.  He could apply for a medical board to be held so as to examine his situation and then decide whether or not he could be regarded as a health-impaired officer.

45.The plaintiff knew that the defendant had in place a system to find modified posts for health-impaired officers and he could have applied to do such work but he did not[21]. When informed on 3 January 2014 and again on 10 January 2014 that he was not getting any sick leave pay after 15 November 2013, he could have provided his written consent for a Medical Board to be convened under Civil Service Regulation 940(a) (“CSR”) to ascertain his physical and mental fitness to return to duty, following a prolonged absence on sickness, as was suggested in the memorandum from the defendant of 3 January 2014[22]; following which he could have been posted to one of these modified posts where he could have undertaken office duties.  However, he did not do so.  I find that the plaintiff was determined to obtain as much full pay sick leave as he could before applying for mutual resolution of his employment agreement[23].  He did not avail himself of the opportunity to to be posted to one of these modified posts where he could have undertaken office duties.  I find that if the plaintiff had done so, the plaintiff would have been asked to return to his former post to perform only office duties, which he was capable of undertaking, at the same pay scale as his pre-accident post.

46.In Chun Yat-nam v. Attorney General for and on behalf of the Commissioner of Police[24], the plaintiff obtained interlocutory judgment for damages to be assessed.  The plaintiff was a police constable attached to the Special Duties Unit of the Police Force.  This unit was an elite section which was highly trained in actions such as counter-terrorist activities. On 4 February 1987, the plaintiff, then aged 26, was playing the role of a terrorist in a training exercise.  He was hit by a plastic bullet and severely injured.  He remained in an intensive care unit until 2 March 1987 and then in an open ward until 19 April 1987.  As a result of his injury the plaintiff suffered anoxic brain damage.  He returned to the Special Duties Unit on 15 August 1987.  Subsequently, at his request, he was transferred to other areas of the Police Force where he performed clerical duties.  In 1990, in a hearing requested by the plaintiff to assess his fitness to remain a member of the Police Force, a Medical Board found that he was unable to carry out the principal duties of a police officer.  The plaintiff thereupon retired from the Police Force.

47.There was no dispute on liability.  At the assessment of damages before the Master, one of the issues was whether the plaintiff’s decision to retire from the Police Force was a novus actus interveniens that disentitled the plaintiff from any claim for future loss of earnings as a police officer.  The plaintiff suffered from a partial loss of sight, permanent brain damage, severe mental depression, and a marked behavioural change. His mental ability was impaired and he suffered from a personality change.  It was not in dispute that, but for the accident, the plaintiff would have continued as a police officer until he reached the age of 50.  It was argued on behalf of the defendant that the Police Force employed a substantial number of disabled officers, and would have continued to employ the plaintiff albeit in carrying out duties which he did not enjoy but which he was capable of doing.  It was submitted that the plaintiff had failed to mitigate his loss and his decision to retire from the Police Force was a novus actus interveniens and his future loss of earnings was due not to the accident, but to his own decision to retire.

48.In the course of considering this submission, the Master referred to CSR 940 which provided that a Medical Board could be convened at the instigation of either the defendant or of an individual officer to assess his ability to carry out the duties of a police officer.  In October 1990, the plaintiff had elected to do so, and, as a result a Medical Board was convened on 27 November 1990, and on subsequent dates.  The Medical Board’s findings were that the plaintiff was not fit to carry firearms and not able to carry out full constabulary duties.  The plaintiff accepted that finding and elected to retire from the Police Force on a disability pension.  The Master was satisfied that, at that stage, the plaintiff was angry, frustrated, depressed and unhappy with life in the Police Force.  He found that the plaintiff:

“faced many years before retiring age in menial jobs which would hold no satisfaction for him with a constant reminder around him of what he had been before the accident.”

49.On appeal to the Court of Appeal, the Court reviewed the evidence before the Master and the authorities that were cited on the issue of novus actus interveniens. The Court of Appeal agreed with the Master’s findings.  They considered that, on the evidence that was before the Master, it was not only reasonable for the plaintiff to leave the Police Force, it was important for his mental health that he did so.  They held that the plaintiff’s retirement based on the Medical Board’s assessment was not a novus actus interveniens to disentitle him from claiming damages for loss of future earnings as a police officer.

50.I agree with the defendant’s submissions that the facts of the present case are entirely different from the facts of the case cited above.  The plaintiff agreed, under cross-examination, that, prior to the accident,  80% of his original job duties were office administration duties which were not physically demanding.[25]  I have no evidence before me that returning to work in a modified post involving 100% office duties for a short period of some 14 months and 21 days from 16 November 2013, when his full pay sick leave ended, to 6 February 2015, when he would have retired upon reaching the age of 55, would cause the plaintiff to suffer from a depressive illness such that it was reasonable for him to apply for mutual termination of his contract of employment.

51.In the application he made on 12 December 2013 for mutual resolution of the employment contract, the plaintiff stated:

“I am the above stated officer presently serving on agreement terms with my present agreement due to finish on 2014-11-27[26]. I am presently on full pay Injured on Duty Sick Leave and coming to the end of the three year period that can be approved by the Commissioner of Police, on 2014-02-21. Any further Sick Leave is subject to the approval of the Secretary for the Civil Service and I have been informed, vide CSBCR/AP/4-075-006/2 Pt.2/00 dated 2003-07-29, that this would be need to be a very exceptional case and it would be very unlikely that such continuance of full pay would be approved.

2. In the past year my wife has undergone two major operations, the first to remove a very large kidney stone, as diagnosed in Thailand. For this operation we had to send her back to Thailand and pay for the operation ourselves as Queen Mary Hospital would not schedule us to immediately see a Renal Specialist and we were required to wait three months. On her return, and upon eventually seeing the necessary specialist she underwent a battery of tests that eventually led to the removal of one kidney in June of this year.

3. With the combination of her suffering this shoddy treatment and myself being unable to receive any treatment for a serious back injury suffered on duty, she now feels that she cannot bear to stay in Hong Kong and wants to immediately return to our house in Thailand where she is confident of better treatment and support from the medical services. My wife’s physical and mental well being are my prime concern and the only way to facilitate this is for me to leave the Hong Kong Police Force in order that we can move all our belongings to Thailand.

4. In view of the above, and the financial hardship that would be caused to my family if my salary were to be stopped, I therefore consider it necessary to apply for Mutual Resolution of Agreement.  My preferred date for this would be 2014-02-21, one day before the expiry of my three years full pay sick leave.”

52.A husband’s motive in ceasing his employment in order to transfer residence to another country for the physical and mental well-being of his wife is entirely laudable.  Deterioration of health and other personal reasons often cause a person to give up gainful employment.  Such reasons are wholly removed from any continuing effects of an injury at work which curtail the person’s working capacity. In his application to cease employment, the plaintiff advanced the reason that he was doing so because of his wife’s health issues.  Such a reason is wholly unrelated to the accident that he suffered at work.  If his wife’s health issues compelled the cessation of gainful employment, it cannot be used to support a claim for loss of earnings from the date of cessation of employment up to the date of retirement at age 55.  Such loss of earnings has been entirely caused by the voluntary decision to cease gainful employment.

53.The second reason set out in the above letter was “the financial hardship that would be caused to my family if my salary were to be stopped”.  The plaintiff’s salary would not have been stopped had he reported back to work after the cessation of his full pay sick leave.  I have already found that if the plaintiff had returned to work, he would have been offered modified duties in the form of managerial office duties which he had been fit to perform from July 2012, at the same pay scale as his pre-accident post. His salary was only stopped because of his voluntary cessation of gainful employment.[27]

54.I have carefully considered the plaintiff’s evidence explaining why he applied for mutual resolution of his employment contract[28]. I have also carefully considered the plaintiff’s submissions.  I cannot find, from the plaintiff’s evidence or from those submissions, any basis upon which I could conclude that plaintiff’s application for mutual resolution of his employment contract with effect from 22 February 2014, was caused or contributed to by the injuries he suffered in the accident complained of.

55.The plaintiff expected to be granted full pay sick leave from 16 November 2013 to 21 February 2014, when he applied for the same on 19 November 2013. When he learned on 3 January 2014 and on 10 January 2014 that this had been refused, he could have applied to withdraw his application for mutual resolution of his employment contract and he could have provided his written consent for a Medical Board to be convened under CSR 940(a) to ascertain his physical and mental fitness to return to duty, following a prolonged absence on sickness, as was suggested in the memorandum from the defendant of 3 January 2014.[29]  As he did not follow this suggestion, his application for mutual resolution of his employment contract was approved on 6 February 2014 and became effective from 22 February 2014.

56.After the mutual termination of the employment contract, the plaintiff remained in his quarters for 60 days after the effective date of mutual termination until April 2014. The loss of accommodation from that date until the date of retirement at age 55 was caused by the plaintiff’s decision to apply for early termination of his employment contract and was not a consequence of the injuries he suffered in the accident complained of.

57.I am satisfied on the evidence I have received that the plaintiff was paid his leave passage allowance calculated up to 21 February 2014[30].  The loss of leave passage allowance from that date until the date of retirement at age 55[31] was caused by the plaintiff’s decision to apply for early termination of his employment contract and was not a consequence of the injuries he suffered in the accident complained of.

58.I am satisfied on the evidence I have received that the plaintiff was paid his gratuity calculated up to 21 February 2014.  The loss of gratuity from that date until the date of retirement at age 55 was caused by the plaintiff’s decision to apply for early termination of his employment contract and was not a consequence of the injuries he suffered in the accident complained of.

59.For these reasons, I dismiss the plaintiff’s claims for loss of earnings and fringe benefits from 22 February 2014 to 6 February 2015.

60.The plaintiff used his accumulated leave to cover the period from 16 November 2013 to 21 February 2014.  Was his loss of earnings and fringe benefits during this period caused or contributed to by the accident. As I have already found, the plaintiff was fit to return to managerial office duties from July 2012.  I find that, if the plaintiff had asked on or before 16 November 2013 for a Medical Board to be convened to enable him to return to work in a modified post, he would have been asked to return to his former post to perform only office duties, which he was capable of undertaking, at the same pay scale as his pre-accident post.  His loss of earnings and loss of fringe benefits from 16 November 2013 to 21 February 2014 were not caused or contributed to by the injuries he suffered in the accident complained of but by his own decision to pursue a course of action to maximise his full pay sick leave.

Loss of MPNCC Allowance

61.The plaintiff held the Marine Police Navigation & Command Certificate (“MPNCC”).  During his employment as a Chief Inspector, he received an allowance in respect of this qualification (“the MPNCC Allowance”).

62.It is common ground that the plaintiff received his MPNCC Allowance up to the end of May 2011 and that the plaintiff did not receive any MPNCC Allowance after May 2011.

63.The plaintiff claimed the loss of MPNCC Allowance in the total sum of $95,900 calculated as follows:

For the period from 1 June 2011 to 31 March 2012 $1,872 x 1.05 x 10 months = $19,656

For the period from 1 April 2012 to 31 March 2013 $1,981 x 1.05 x 12 months = $24,961

For the period from 1 April 2013 to 31 March 2014 $2,059 x 1.05 x 12 months = 25,943

For the period from 1 April 2014 to 6 February 2015 ($2,152 x 1.05 x 11 months) + ($2,152 x 1.05 x 6/28) = $25,340

The claim is from 1 June 2011 to 6 February 2015, on the basis that he would have received this allowance up to the time of his retirement at age 55. The above calculation is erroneous as the period of 1 April 2014 to 31 January 2015 is a period of 10 months and not 11 months. The correct calculation for the period from 1 April 2014 to 6 February 2015 is ($2,152 x 1.05 x 10 months) + ($2,152 x 1.05 x 6/28) = $23,080 which reduces the claim to $93,640 ($95,900 – ($25,340 – $23,080 = $2,260)).

64.For the reasons set out above, if I am persuaded that the plaintiff is entitled to claim this allowance, I would find that he would only be entitled to claim the loss of MPNCC Allowance up to 21 February 2014, being the date when his employment contract was mutually terminated. The loss of MPNCC Allowance thereafter was caused by his voluntary decision to terminate his employment contract, and not by the accident complained of.

65.The defendant disputed this claim for the reasons set out in the witness statement of Mr Lee Ting Kwok.  In §12 of his first statement he said:

“12. For the MPNCC allowance, which is an Extra Duties Allowance for the Disciplined Service (Marine) at MPNCC level, an officer is not automatically entitled to this allowance even though he/she possesses the MPNCC qualification. He/She has to be in certain posts that require the exercising of the skill/knowledge in connection with the qualification to become eligible for the MPNCC allowance and, even in such posts, he/she has to work a certain minimum number of days in a calendar month to actually claim the allowance. In the Marine Region, there are 12 such posts at CIP rank but there are also 16 posts at CIP rank that do not attract MPNCC allowance. A list of these posts are at Annex B. Of the latter 16 posts, there are 8 that the Plaintiff could likely be assigned. Hence, there is no guarantee that the Plaintiff would always be in an allowance-entitled post during the past two years but for the alleged accident. In fact, before returning to Marine Region on 6 August 2009, he has spent almost eight years in other Police units and he was not entitled to the MPNCC allowance during this period.”

and in §6 of his supplemental witness statement he said:

“6. From 8 June 2011 to 4 August 2014, the Plaintiff was posted as a reserve officer and was not required to work. Hence, he was not required to exercise the skill/knowledge in accordance with the MPNCC qualification and therefore was not entitled to the allowance.”

66.But for the accident, would the plaintiff have been posted from June 2011 to the end of February 2014, a period of 33 months, in a post where he could have earned this allowance?  From August 2009 to May 2011, a period of 22 months, he was earning this allowance. It is clear from Mr Lee’s evidence, which I accept, that the plaintiff could have been posted to 12 posts where he could have earned this allowance or to 8 other posts where he could not earn this allowance.  I find that it is more likely than not that the plaintiff would have been posted to a post where he could have earned this allowance.  He was at the tail-end of his career and had a useful skill.  It is more likely than not that he would have been posted to a position where he could exercise this skill, at least for that period of 33 months from June 2011 to the end of February 2014.

67.The second point raised by the defendant is only valid for the period after June 2012 when the plaintiff could have returned to managerial office duties. The injuries he suffered from the accident prevented him from working before June 2012 and, thus, prevented him from earning this allowance.  From July 2012 to 21 February 2014, as I have found, he could have returned to full time managerial office duties in a modified post that would have been offered to him. However, I am not satisfied on the evidence adduced before me that he could have earned this allowance in such a modified post.  Given the nature of the allowance, which requires the exercise of his marine navigation and command skill, I find that he would not have been able to earn this allowance in the modified post.  Accordingly, I find that the loss of this allowance from July 2012 to 21 February 2014 was caused by the accident.

68.For these reasons, I award the sum of $68,398 under this head of claim, inclusive of loss of MPF benefits, calculated as follows:

For the period from 1 June 2011 to 31 March 2012 $1,872 x 1.05 x 10 months = $19,656

For the period from 1 April 2012 to 31 March 2013 $1,981 x 1.05 x 12 months = $24,961

For the period from 1 April 2013 to end February 2014 $2,059 x 1.05 x 11 months = $23,781

Future Loss of Earnings

69.Although claimed in his Amended Revised Statement of Damages, the plaintiff did not pursue this claim at trial.

Loss of Earning Capacity

70.On the evidence that was adduced before me, I would not have made an award for damages for loss of earning capacity.  The plaintiff has worked full time for AMP for some 2 years prior to trial. No evidence was adduced of any difficulty that he might have had at this employment over this period of time.  No evidence was adduced that he needed to take some days off because of a recurrence of low back pain.  On the contrary, his evidence and that of Mr DeLuca was that they were not aware of any real or substantial risk that AMP would terminate his contract of employment.

71.However, it was averred in §27 of the defendant’s Amended Answer, under the heading “Loss of Earning Capacity” that the defendant “will allow a lump sum of $80,000, equivalent to one month of the plaintiff’s salary”.  Having made this concession, absent an application to further amend his Amended Answer, he cannot resile from it.  I, therefore, award $80,000 as damages to the plaintiff for loss of earning capacity. §26 of the defendant’s Amended Answer contained a denial that the plaintiff was entitled to claim damages for loss of earning capacity. However, §27 of the defendant’s Amended Answer contained an unequivocal concession that the defendant would allow a lump sum of $80,000 under this head of claim.  It was not plea in the alternative such as, for example, a plea that “if, which is denied, the plaintiff is entitled to an award of damages for loss of earning capacity, it is averred that the award ought not to exceed $80,000, being the equivalent to one month of the plaintiff’s salary”.

Special Damages

72.In the Amended Revised Statement of Damages, the plaintiff claims $10,000 as special damages, in respect of his “medical, travelling, tonic food and other miscellaneous expenses”.

73.In his Amended Answer, the defendant averred that the claim of $10,000 was excessive and that the plaintiff had not provided a breakdown of that sum, and further, subject to production of documentary receipts, the defendant averred that the amount of up to $1,000 for travelling expenses was reasonable, and that expenses for tonic food ought not to be allowed in excess of the sum of $1,000.

74.No receipts have been produced and the plaintiff did not speak of the expenses he had incurred as a result of the accident, either in his 2 witness statements or in his oral evidence before me.

75.In his closing submissions, the defendant submitted that, in the absence of any supporting evidence from the plaintiff, no award under this head of claim should be made.

76.The plaintiff, citing the judgment of Jerome Chan J. in   Chan Si Mui v Kong Hung Keung & Others HCA 4977/1991, 13 September 1994, submitted that the court could assess and award a reasonable amount in respect of bonesetter treatments and nourishing foods consumed, even in the absence of any receipts being produced to support such claims.

77.In this case, the plaintiff has not adduced evidence in his witness statements or in his testimony that he had consumed tonic food and had incurred the other expenses that he claimed as special damages. However, he did sign a Statement of Truth on 28 July 2014, expressing his belief that the facts stated in the Amended Revised Statement of Damages were true.

78.Although I am able to accept as evidence, the plaintiff’s hearsay statement in respect of the claim for special damages contained in the Amended Revised Statement of Damages, and place weight on it to find as a fact that the plaintiff incurred medical expenses, travelling expenses and expenses for tonic food not exceeding the sum of $10,000, I am unable to ascertain how much of the said $10,000 was expended on these 3 items of expenditure.  As I am unable to assess how much was expended on each item of expenditure, I am unable to assess whether or not the “unknown” amount was reasonably expended.  Further, I cannot rely on the defendant’s concessions in his Amended Answer as those concessions were subject to the production of documentary receipts, which was not done.

79.For these reasons, I am unable to make any award in respect of the claim for special damages.

Future Medical Expenses[32]

80.The following claims appear in the Amended Revised Statement of Damages:

“The Plaintiff claims HK$90,000 for his future medical expenses, loss of earning, travelling and other miscellaneous expenses for attending future medical treatments, also HK$419,073 for discrography (sic) and transforaminal lumbar interbody fusion technique.”

81.The claim is denied in §32 of the defendant’s Amended Answer.  The defendant also averred that there was no medical evidence in support of the need of discography and transforaminal lumbar interbody fusion.

82.I dismiss the claim for HK$90,000 in the absence of any evidence supporting this claim.  Insofar as the claim includes a claim for loss of earnings, I already made my findings in respect of such claim.  Although the orthopaedic experts were of the opinion that the plaintiff should attend an orthopaedic clinic about once every 3 to 4 months, or whenever there was exacerbation of pain, to look for any deterioration of nerve root compression that might require intervention, and that the cost of such follow-up visits in the private sector would be around $10,000 a year, no evidence has been adduced that the plaintiff sought treatment in the private sector for such follow-up visits.

83.The schedule of sick leave certificates[33] has detailed the plaintiff’s visits to various medical facilities under the Hospital Authority from 24 February 2011 to 28 February 2014.  Other than the medical certificate and receipt from Bangkok Hospital Phuket, both dated 27 May 2011[34], the other documents produced[35] were all related to his visits to the medical facilities under the Hospital Authority.

84.The claim for $419,073 for surgery in the form of discography and transforaminal lumber interbody fusion is based on a report from a Dr Clarence Leung who apparently performs spine and brain surgery.  In his report dated 8 August 2012, some months after the joint orthopaedic expert report dated 28 May 2012, he recommended, for the reason that the plaintiff failed to respond to conservative treatment, discography, to exclude L4-5 asthe pain generator, followed by fusion of L5-S1 via transforaminal lumbar interbody fusion technique. On 20 August 2012 he provided a quotation for these procedures to be carried out at the Matilda Hospital.  The costs, in the second class shared room, were estimated to amount of $419,073 inclusive of hospital charges, surgeon’s fee and anaesthetist’s fee.

85.No application was made for the joint orthopaedic experts to review the opinion and quotation of Dr Clarence Leung.  No application was made for leave to adduce the opinion of Dr Clarance Leung into evidence as expert opinion.  In the absence of admissible expert opinion on the need for the plaintiff to undergo such surgery, and at as such cost, I must dismiss this claim.

86.I note that the plaintiff did not undergo any such surgery in the 3 years and 9 months that have passed from the end of August 2012 until the date of trial in June 2016.  

Loss of Congenial Employment

87.The plaintiff claims $50,000 for the loss of congenial employment.  While such an award may be made to a plaintiff who has had to give up an employment which he enjoyed and which gave him satisfaction, and while such awards are frequently made to policemen and firemen, I am unable to award damages for loss of congenial employment in this case.  As I have already found, the plaintiff could have carried on his employment in a modified post undertaking managerial office duties until he reached the age of 55.  However, he chose to apply to mutually terminate his employment contract.  The loss of congenial employment was not caused by the accident but by his voluntary decision to terminate his employment. In this regard, I also note the observation of Deputy Judge Leighton-Williams QC in Lane v Lake [2007] All ER (D) 258 at §21:

“21. … Mr Gore says such a head of damage is in practice reserved for policemen, firemen and the like. Such awards are frequently made to policemen and firemen but that is because it has become almost a tradition to claim such award in such cases. In my judgment such an award ought to be confined to those who truly have suffered a loss under this head and not be awarded merely by reference to the type of employment nor automatically as an extra.”

Employees’ Compensation

88.On 4 October 2012, the plaintiff served a Notice of Acceptance of Sanctioned Payment in the sum of $99,072 that had been made by the defendant in the employees’ compensation proceedings, DCEC 200/2012. The amount that I have assessed as damages to be awarded to the plaintiff in these proceedings ought to be reduced by the amount of $99,072 which the plaintiff has received as employees’ compensation.

Interest

89.I award interest on damages for PSLA at the rate of 2% per annum from the date of service of the writ up to the date of judgment.  I award interest on the sum of $68,398 for loss of MPNCC Allowance and MPF benefits at the rate of 4% per annum from the date of the accident until the date of receipt of the sanctioned payment that was made in DCEC 200/2012.

Summary of Awards

90.A summary of my awards are as follows:

PSLA	$250,000 and Interest
Loss of Earnings & Fringe Benefits	Nil
Loss of Income from Part-Time Employment	Nil
Loss of MPNCC Allowance & MPF Benefits	$68,398 and Interest
Loss of Earning Capacity	$80,000
Special Damages	Nil
Future Medical Expenses	Nil
Loss of Congenial Employment	Nil
Sub-total:	$398,398
Less Employees’ Compensation Paid	($99,072)
Net Award:	$299,326 and Interest

Costs of the Action, including Costs of the Application to Adduce Additional Evidence on the First Day of Trial

91.I make a costs order nisi that the defendant pays the costs of the action to the plaintiff, be taxed on the District Court scale, if not agreed. I also make a costs order nisi that the plaintiff pays the costs of the application to adduce additional evidence to the defendant, to be taxed on the High Court scale, if not agreed.

Mr Colin Wright and Ms Chrystal Choy, instructed by Holman Fenwick Willan, for the plaintiff

Mr Jonathan T. Y. Chang, instructed by Department of Justice, for the defendant