Fuk Wan Hau v Jim

In an assault claim, the distress and additional suffering caused by the circumstances of the assault should ordinarily be reflected within the award for pain, suffering and loss of amenity. A separate award of aggravated damages is exceptional and requires a distinctive feature of the defendant’s conduct or its effect on the claimant.

Conduct of the litigation will generally be dealt with through costs rather than aggravated damages, particularly where its effect on the claimant has not been established by evidence. A claimant’s unreasonable failure to obtain medical treatment may delay recovery and reduce damages for consequential loss. Loss must be proved as caused by the assault; unsubstantiated future losses and symptoms attributable to an unrelated condition are not recoverable.

The claimant sought damages for a prolonged assault involving weapons at the opening of a restaurant. Liability had already been determined in his favour. The court assessed damages for physical and emotional injury, loss of earnings, care, medication and travel expenses, and considered a separate claim for aggravated damages.

The principal issues were whether the circumstances of the assault justified a separate aggravated damages award, whether the claimant had unreasonably delayed medical treatment, what income he would probably have earned, and whether later back pain and future losses were attributable to the assault.

1. Aggravated damages. The court applied the approach in Richardson v Howie [2004] EWCA Civ 1127: where aggravated damages are appropriate in an assault claim, the additional distress should ordinarily form part of the award for pain, suffering and loss of amenity. A separate award is exceptional.
2. The assault was serious and distressing, but no feature of the assault or the claimant’s reaction made this an exceptional case. The defendants’ conduct in the litigation was not a proper basis for aggravated damages. Such misconduct is ordinarily reflected in costs, and its effect on the claimant had not been proved. The distress caused by the assault was included in the general damages award.
3. The claimant had failed unreasonably to seek medical treatment after August 2005, although further treatment would probably have been available. That failure delayed physiotherapy and recovery by approximately four months. Loss of earnings was therefore assessed on the basis that he could have returned to work four months earlier, initially part time and then full time.
4. The court was not satisfied that the claimant had agreed a net wage of £360 per week. His loss of earnings was to be calculated using £256 net per week, with credit for income received. The calculation was left to counsel.
5. The later back pain was not shown to have resulted from the assault. Consequently, claims for future loss, early retirement consequences and future treatment or medication attributable to that condition failed. The court awarded £15,000 for pain, suffering and loss of amenity, £1,500 for care, £50 for medication and £500 for travel expenses.

First-instance assessment of damages following judgment for the claimant on liability on 6 September 2007.