Fuk Wan Hau v Jim

This is a claim for damages for assault arising out of incident which occurred on the opening night of the Oriental Palace Chinese Restaurant in Haverfordwest in West Wales on 4^th June 2005. Judgement for the Claimant on Liability was entered on 6^th September 2007. I am trying the issue of Quantum. In addition to claiming compensatory damages for his injuries the Claimant seeks aggravated damages. He also claims for loss of income, care and for travel and medication costs.

In the incident the Claimant was set upon by the Defendants and struck with kitchen implements. He fell to the floor, where the assault continued. The assault lasted some 20 minutes. Police attended. The Claimant was taken to hospital. The Defendants were charged with wounding with intent. They changed their pleas to guilty at the last minute. They were of previous good character. They were each sentenced to 50 weeks imprisonment suspended for 2 years. The Prosecution accepted pleas of guilty tendered on the basis that the First Defendant had been provoked and the Second Defendant had been protecting his mother. The case proceeded to the Court of Appeal by way of an Attorney General’s reference where the sentences were each increased to 26 months immediate imprisonment. The Court of Appeal proceeded on the basis that there had been a degree of provocation since the Crown had accepted pleas on that basis. It is apparent that the Court was concerned about this basis since no evidence had been called on the issue and the fact that the Claimant had later contacted the authorities firmly denying that this was so. The Court indicated that without provocation sentences of at least 4 years imprisonment would have been appropriate. It is clear that the Court regarded this as a serious assault.

The Claimant was 47 years old at the time (date of birth 17^th December 1957). He had left Hong Kong in 1973 and settled down in Paris where he ran his own Chinese takeaway as well as a restaurant. In 2004 he agreed to join his sister and her husband in running a restaurant in Haverfordwest where they lived. A company Oriental Palace (Pembrokeshire) Ltd was set up with 4 shareholders : the Claimant, his brother in law Paul Chung, W Chung (Paul Chung’s brother) and the Second Defendant, each putting £50,000 into the venture and each having a 25% shareholding. Preparations for opening the restaurant were made. The Claimant moved to Haverfordwest living with his sister and brother in law. His wife and their two sons remained in Paris. Then came the disastrous opening night when the Claimant was injured.

I shall deal first with the heads of damage separately.

The Withybush Hospital Haverfordwest Accident and Emergency notes and paragraph 25 of the Attorney General’s reference (set out at paragraph 6 of the judgement of the Court of Appeal) provide a slightly more detailed picture of the injuries. The scalp lacerations were recorded as each measuring 6 – 7 cm, the laceration over the left zygoma as about 6cm, the forehead laceration as about 2cm and the upper lip laceration at about 2cm. Three of the scalp lacerations, were sutured as was the laceration on over the left zygoma and that on the left upper lip. Police photographs taken when the Claimant was in hospital show these injuries. The right leg was in plaster for some 10 weeks, at first in an above knee plaster and then in a Sarmiento below knee plaster, which supports the fracture and should enable the patient to weight bear a little. On 11^th August the Claimant was recorded by Mr Glan Phillips, the treating orthopaedic surgeon at Withybush Hospital, as having “walked in” in the below knee plaster. Mr Phillips was delighted with the progress and envisaged taking the plaster off in 2 weeks time. A letter from Mr Khan to the Claimant’s GP dated 25^th August 2005 recorded that the plaster had been removed, that the bone was healing nicely in good position with callous formation.

There is then a gap in the hospital notes until 9^th March 2006, save for a list of manuscript dates in the Claimant’s history sheet opposite which Mr Glan Phillips’ name is stamped. There is no evidence that the Claimant attended Withybush Hospital between 25^th August 2005 and 9^th March 2006.

When the Claimant attended Withybush Hospital on 9^th March 2006 it was noted that although the fracture had healed he was complaining of considerable pain in his right ankle and knee. On 23^rd March Mr Glan Phillips concluded that the Claimant had soft tissue injury due to the fact that he has not been using this leg for a long time as he was in plaster. In fact the plaster had been removed the previous August but the comment of lack of use appears relevant. He referred the Claimant for physiotherapy.

The Withybush Physiotherapy Notes then take over the history. The Claimant was first seen on 10^th April 2006. A translator was present. The following were recorded : left knee giving way, pain in the right knee, pain in the ankles, “walking standing ½ hr”, weakness in walking and constant headaches. On 26^th April the notes recorded “Advised to go to gym x 2/wk & swim when in France for 1/12”. By 1^st June (possibly it is the 11^th) slight improvement in gait and coordination were recorded. On 21^st June the note records “better able to walk further before needing to sit”. On 2nd (?) August he had “improved greatly recently as he does more HEP” (home exercise programme). On 18^th August he was recorded as improving but complaining of knee ache. On 17^th October he was recorded as complaining of lower back pain. On 23^rd November it was recorded that he had a minimum amount of ankle and knee pain and was back in work but having to sit every 2-3 hours.

He had in fact returned to work in October, part time at first but increasing his hours ultimately to full time. He has continued in work at the restaurant. It is accepted that the Claimant’s leg injury is now fully recovered.

In closing submissions Mr Arensen for the Defendants submitted that this was a fracture meriting an award at the lower end of the bracket.

Mr Rivers for the Claimant submitted that although this was not a complicated fracture nevertheless it had necessitated 10 weeks in plaster and was accompanied by soft tissue injuries. He pointed out that the Withybush records and physiotherapy notes showed enduring leg problems lasting into late 2006. The Claimant had needed physiotherapy for some months. And the fracture had come at a time when the Claimant with others was starting up a new business. In addition the Claimant had lost a tooth with others loosened, had significant lacerations which had healed leaving some scars, had received bruising and had likely been unconscious at the scene, given the 14/15 Glasgow Coma Scale assessment when he was in hospital. In connection with the latter he pointed out that Mr Lake had noted a significant amnesic period and observed that an non-complicated concussive injury such as this could nevertheless cause persisting effects such as headaches for some 3 months : the Claimant had complained of headaches and difficulty sleeping. He pointed out that an assault lasting some 20 minutes could be expected to have given rise to symptoms lasting for some time.

I accept Mr Rivers’ summary as a fair basis for assessment of Pain Suffering and Loss of Amenity. It would not have been surprising if an assault such as had produced a significant psychiatric or emotional reaction. In his witness statement dated 28^th November 2006 the Claimant said he still had headaches and sometimes became distressed with memories of the assault and felt depressed and on edge when he thought about it. When asked about the emotional effects on him the Claimant’s responses, as translated, were that the incident was “very unforgettable”, that he was “shocked by the incident” but that he could not properly express himself. Mr Chung said that the Claimant tended now to be temperamental, sometimes displayed nervousness and was afraid of coming to work in the restaurant. Mrs Hau said on about 4 nights a week the Claimant woke and shouted. Although Mr Hucker had advised that it would be reasonable to seek psychiatric evidence the Claimant’s statement said none had been sought because he could not afford it. In the absence of any psychiatric evidence I cannot conclude that the Claimant has suffered any recognisable psychiatric condition as a result of the assault. Nevertheless I see no reason not to find that the Claimant would have suffered the distress and concern which can reasonably be expected to have been caused by such an assault and which is supported by the limited evidence given by the Claimant, Mr Chung and Mrs Hau.

The Defendants say that the gap in recorded hospital treatment between 25^th August 2005 and 9^th March 2006 is because the Claimant failed to attend hospital appointments arranged for him on 10^th November, 1^st December and 5^th January. Mr Lake said that lack of treatment during the 4 month period from November to March meant delayed recovery. He says that with a comparatively simple fracture (such as it is agreed the Claimant sustained), no formal rehabilitation may be necessary and use of the injured limb may be the best healer. But he accepts that in some cases formal physiotherapy, such as the Claimant in due course received, may be necessary. He asserts that with timeous treatment the Claimant should have been able to return to work by early 2006 but accepting some complication says it should have been by April 2006 at the latest. Mr Hucker said that when he examined the Claimant in April 2006 he was not then fit for full time work but he also agreed that delay in seeking treatment may set back recovery and that if the Claimant had had just the leg injury he would have expected healing to take 3 – 4 months followed by say 2 months physiotherapy before fitness to return to work, possibly part time.

For the Claimant Mr Rivers argued that whilst the gap in the notes clearly existed, there is no satisfactory explanation of what happened during that period and I should not presume that any lack in treatment during that period is because of unreasonable conduct by the Claimant. He asserts that whilst a claimant may have a duty to seek medical treatment to mitigate his loss it is for a defendant to prove that a claimant has failed to mitigate and the Defendants have failed to do that in the present case, because there is no explanation for the gap, no evidence that the Claimant knew of the appointments, nor that the Claimant, whom the doctors regarded as a cooperative patient, failed to attend when he should have.

This gap in the evidence is surprising but I accept Mr Lake’s evidence that the hospital entries are consistent with appointments having been made. The Claimant attended the last appointment fixed namely for 9^th March, so notice of it must have reached him. I conclude therefore that the Claimant, as a conscientious patient did not attend because he did not know of the appointments. The reason for that is probably that he had returned to his wife and sons in Paris during that period. That would have been an obvious thing to do given that he was in what was for him a strange country and unable to work.

There is in fact no evidence of what he did between 25^th August 2005 and 9^th March 2006. He accepted he might have gone to France at some time on holiday. There is no record of his having sought any medical advice when in France although some of his French medical records for other times have been disclosed. I conclude therefore that he did not seek medical treatment when in France. The Claimant’s advisers have had Mr Lake’s report for some 2 months so this matter cannot be regarded as taking them by surprise.

The Claimant’s failure to seek medical treatment during this gap was a matter for him. Was he unreasonable in doing so ? I consider he was. It must have been obvious to him in late August 2005 that his leg injury had not fully healed and further medical advice would likely be necessary. Yet he appears to have delayed until March 2006 before doing so. The French appear to have an efficient public health system so, had he been in France, treatment is likely to have been available had he sought it. If he were in Wales I can see no good reason for him not to have attended hospital. In the result formal physiotherapy was delayed by some 4 months and I conclude that recovery of the leg injury was delayed by that period.

In October 2006, over a year after the assault, the Claimant complained of low back pain, first to his GP and then to his physiotherapist. He had made no such complaint to Mr Hucker on being examined in April 2006. At a later stage Mr Hucker put the back pain down to an unequal leg length which he said he had measured in April 2006, but he now accepts leg lengths are equal and relies on soft tissue injury to the ligaments or facet joints as the explanation. But Mr Hucker accepted that if such had been caused in the assault he would have expected the Claimant to have complained about back symptoms prior to discharge from hospital 10 days after his admission. There was no such complaint recorded nor is there any back injury recorded in the hospital A and E notes or in the Claimant’s medical notes made during his 10 day stay in hospital. Mr Lake said that where there is back pain patients readily complain about it.

Back pain is not uncommon. The Claimant’s complaint of low back pain was first made close to or following his return to work in October 2006. Mr Rivers in closing submissions fairly acknowledged the difficulties he faced in this regard. I am afraid I cannot conclude that such pain is attributable to the assault.

Aggravated damages.

Mr Rivers submits the following justify an award for aggravated damages :

Mr Arensen does not dispute the Claimant’s entitlement to compensation for the distress that an assault such as this will have caused the Claimant but says that the uplift in any award should be modest. He submits, rightly in my judgement, that the conduct of litigation in a case such as this (as opposed to say libel where persisting in a groundless defence of justification may add to distress which is integral to the damage claimed) is not a valid ground for awarding aggravated damages. Misconduct in the litigation process is usually reflected in costs orders Further these matters have not been explored in evidence and no evidence has been called dealing with the effect of the conduct of the litigation on the Claimant. It is correct that on hearing that the sentences had been passed on the basis that the Defendants had been provoked, a letter, evidently written on the Claimant’s behalf, was sent to the Crown Court complaining about the suspended sentences and stating the Claimant was “devastated” at the fact that the Defendants had gone “unpunished”. But, as Mr Arensen pointed out, the sentences were the decision of the court based on the Crown’s acceptance of the bases of the pleas.

The Court of Appeal identified a number of aggravating factors as relevant to sentence. Sadly, such factors are not unique to the present case. I accept that the Claimant is entitled to an award for the additional distress which this incident will have caused him but consider that component should be allowed for the award in the award for Pain Suffering and Loss of Amenity. Although this assault was very serious I cannot identify any feature of it or the Claimant’s reaction to it which makes this an exceptional case meriting a separate award for aggravated damages.

In his Skeleton Argument Mr Arensen for the Defendants had allowed £8,000 for the leg injury, £5,000 for the injuries to the face, head and teeth, and uplifted these awards to £15,000 “to reflect the unpleasant circumstances of the injury”. In closing submissions he suggested his earlier valuation of the leg injury had proved to be too high in the light of the medical evidence and that the leg injury more properly fell in the Eighth Edition of the JSB Guidelines at (L)(c)(iii) where for simple fractures and soft tissue injuries, up to £5,350 was suggested. On this basis he said that a total award of £12,000 would now be appropriate.

Mr Rivers in his Skeleton argument for the Claimant said that, ignoring the back pain, the physical injuries should be assessed at £20,000. In addition he submitted the Claimant was entitled to a substantial award by way of aggravated damages. In his closing submissions he reined back his figures a little in the light of the medical evidence but sought to hold on to his £20,000 as an overall award dividing it into £15,000 for the injuries and £5000 for the distress etc. He accepted that such a figure would be towards the top end of his bracket. He invited me to make a separate award for aggravated damages.

I do not regard the leg fracture as serious as lower leg fractures go. I consider that Mr Arensen had overvalued it in his earlier Skeleton, without the advantage of the oral evidence given by Mr Hucker and Mr Lake. Nevertheless it would have constituted a serious interference with the Claimant’s mobility as long as the leg was in plaster and clearly would have prevented the Claimant getting around on his bicycle. I consider that Mr Arensen’s new figure of £12,000 in all does not sufficiently take into account the Claimant’s other injuries namely the loss of the tooth, which with associated loosening of other teeth would justify, in my judgement, an award of £2000, the concussion with its consequent symptoms which Mr Lake accepted could last for 3 months, the other soft tissue injuries which caused the need for physiotherapy for a period of 6 months or so and the lacerations which needed stitching and which have left some scarring. I examined the Claimant’s scarring. Happily it was not extensive or generally obvious : the laceration above the left zygoma was the most evident having left a rough surface in contrast to the Claimant’s otherwise smooth skin. The scar on his upper lip although covered by thin facial hair at present would be a nuisance when shaving. In addition, as the Defendants acknowledged the Claimant is entitled to be compensated for distress in its various forms resulting from the particularly nasty attack he underwent.

It was difficult to assess the Claimant’s character and personality, not least because of the language difficulties but I consider the Claimant is someone who tends not to talk about his problems. In my judgement an inclusive award of £15,000 is appropriate under the head of Pain, Suffering, and Loss of Amenity.

The Claimant was off work from the date of the assault until October 2006 when he returned part time. There is nothing to suggest work would not have been available for him at the restaurant during his period of absence. On my findings that he unreasonably failed to seek medical treatment for a 4 month period then I find he should have been back at work 4 months earlier.

I accept that on return to work he could not reasonably be expected to put in a full working day at the outset but I see no reason why after 3 months or so he should not have done so, so far as the injuries resulting from the assault are concerned. The Claimant developed an unrelated back condition in October 2006. I therefore conclude that by say 1^st February the Claimant should have been capable of earning whatever he would have been paid for full time work, so far as the effects of the assault are concerned.

In fact the Claimant on return to work earned at a reduced income of £115.27 net from and including the week ending 28^th October 2006, then £144.18 net until and including the week ending 10^th February 2007, then £200 pw net until and including the week ending 25^th August 2007 and ever since £256 per week net, equal to £324.86 pw gross. Although he is now working full time he is still not earning at any higher rate.

The Claimant seeks an award of £30,170 based on a loss of a net £360 pw totalling £47,160 less £16,989 income received. It appears the figure of £360 pw net was taken from his first pay slip. But I was told by Mr Chung that this payment was for preparatory work the Claimant had done.

In his undated affidavit made in support of his application for a freezing order the Claimant asserted he was entitled to an income of £360 pw and each of the Jim family £280 pw. He made no mention of Mr Paul Chung.

In support of his claim he relied on the evidence of Mr Paul Chung. In his witness statement Mr Chung said the Claimant had been appointed as Head Chef at a meeting held in May before the restaurant was opened ; then at a further meeting in May attended by Mr Chung’s brother and the First Defendant, but not the Second Defendant, it was agreed the Claimant would earn a salary of £450 gross pw. The occurrence of this meeting was disputed by the Defendants.

In evidence Mr Chung said the Second Defendant had been represented at the meeting by his parents. He said that wages had been agreed at the second meeting, and that wages had to be agreed before opening. He ran the accounts and sent the accountant details from which the accountant had drawn up the payslips. He said payslips were not issued unless asked for. He said the agreement was to pay the Claimant £450 gross. He also said the rate of pay was £8 per hour gross. I observe that on that basis £450 would represent 56¼ hours work per week. The Claimant is now working 40 hours per week therefore on this basis he would be earning £320 pw gross. In fact his £256 net per week according to the pay slip is consistent with £324.87 gross pw. Mr Chung offered no clear explanation why the Claimant was not now being paid £360 net pw but did say they were not opening lunchtime. Whether they have ever had the trade to justifying opening lunchtime was not explored.

Mr Chung said he dealt with the accounts. Mr Steven Jim clearly regarded Mr Chung as the person who made the decisions about money. I conclude that Mr Chung was the moving force behind the venture and I had the distinct impression that it was Mr Chung who made the financial decisions. I am satisfied that wages were to be paid on a net basis with the books and pay slips then adjusted for tax and National Insurance which the company would be obliged to pay. I am also quite prepared to accept that the Claimant had been appointed Head Chef by Mr Chung. It is a nice point whether Mr Chung had the authority to do so. The Second Defendant had no experience of running a restaurant and said he left business matters to Mr Chung. Mr Chung’s brother, whose evidence was read, said he had never agreed a salary for the Claimant, contrary to Mr Chung’s assertion that he had been present at the meeting. It is not clear whether he too left such matters to Mr Chung. The Defendants suggested they were to be paid £200 per week, at least that was the Second Defendant’s expectation. Mr Chung said he was paid £200 per week.

Mr Arensen makes the point that the accounts for the Oriental Palace for the year to Sep 2006 show an operating profit of only £13,889 after deductions for expenses which include wages totaling £38,880. This would cover a period when the Claimant was not at work and therefore in receipt of only £80 pw. Had he been paid at the rate of say £450 gross ie about £360 net then an extra £370 pw or £19,240 pa would have to be found. He says the business could not afford this. This is a valid point subject to the availability of an overdraft, facility, which I was told was £5000, and the ability of someone like Mr Chung to put capital into the business in the hope of future returns. In the financial year ending September 2006 turnover had been £171,235. Mr Chung seemed confident of achieving turnover of £400,000 pa ie close to £8,000 per week. Further, the wage bill would have included the cost of paying the Claimant’s replacement, a Mr Pan, whom I was told was paid £170 per week (£8,840 pa) which would have the effect of reducing the extra £19,240 to £10,400. I note too that the accounts include depreciation of £11,313, which in the short term might not have been a real cost. I do not therefore regard the accounts as making it clear that the Claimant could not have been paid £360 per week.

But having said that it is not too difficult to see that the Second Defendant or rather his father the First Defendant (who had funded the Second Defendant in the venture) would not likely have been content with £200 pw each for himself, his wife and the Second Defendant if the Claimant were being paid £360 pw. And given that the business might have taken some time to get off the ground, that even if £360 pw week had been promised by Mr Chung to the Claimant, that wage may have been revisited. Given the animosity that had evidently developed on the part of the Defendants it is not too difficult to have expected the Claimant’s position and alleged wage to have become the subject of acrimony.

I note too that although the Claimant is now back full time he is not being paid £360 pw but £256 although if £360 had been agreed I see no valid reason why he should not be receiving that wage now. No documentary evidence has been produced to substantiate this claim and I was told none existed.

In the light of all the evidence I am not satisfied that there ever was an agreement that the Claimant should be paid £360 per week net. I am therefore not satisfied that £360 pw net can be regarded as a satisfactory base figure from which to calculate the Claimant’s loss of wages. I consider however that the evidence is consistent with £256 net per week as representing what the Claimant would have been paid.

The claim for loss of wages therefore needs to be calculated on the basis of that :

Care

In the days following the assault the Claimant’s wife flew over from Paris and stayed for about a week during which time she visited the Claimant in hospital when permitted to do so. She said she also came over in August. She said she had used her annual holiday to do so. She was made redundant in October 2006 and her undated witness statement said she had not worked since. I assume the Claimant’s sister and others may also have visited the Claimant in hospital.

On discharge from hospital after 10 weeks the Claimant returned to live with his sister. In her witness statement she said 24 hours per day care was provided for the first 3 days and then it was about 2-3 hours per day helping him with his cooking and washing for about a month.

I am afraid I cannot accept Mr Hucker’s assessment of hours spent on care. He did not explain the basis of his assessment. Nor for that matter did Mr Lake. Neither is a care expert. Each I consider was taking an armchair view without detailed consideration of what the Claimant’s needs had been. The Claimant’s sister’s assessment of 24 hour care for he first 3 days cannot be taken literally. I accept her assessment of 2-3 hours per day but consider she has underestimated the length of time she would have had to assist the Claimant and that her assistance would have encompassed general assistance doing things for him he could not initially easily do for himself and not be confined to cooking and washing. I consider that an award of £1,500 will do justice to this head of claim : it represents approximately 3 month’s care averaging 3 hours per day for the first 2 months and 2 hours per day for the last month at say £6 per hour rounded up just a little.

Miscellaneous past losses

Future Loss

Finally, I thank counsel for their assistance. I would be grateful if they would calculate the wage loss. I will consider applications for interest and costs.