Hong Kong Personal Injury Brief - July 2021 edition

Fraud or exaggerated claim? It was widely reported recently that the captain of the Hong Kong men’s cricket team was arrested on suspicion of fraud for seeking $3 million damages arising from a traffic accident, which he claimed rendered him unfit to work, despite evidence showing he actually played in numerous matches following the accident. While catching suspicious claimants out is nothing new to insurers, there have been very few prosecutions given the high burden of proof needed to secure a conviction. Even in many civil cases where positive surveillance evidence has been adduced, courts have been slow to dismiss claims entirely, preferring to find exaggeration on the claimant’s part rather than fraud. Nevertheless, news of this arrest and police investigations will hopefully send a strong signal to spurious claimants and their solicitors to refrain from making excessive claims.

In this month’s Brief, we highlight several recent judgments where courts have accepted the defendants’ surveillance and expert evidence and awarded sums much lower than what has been claimed.

In Yum Siu Wah v Wong Chi Shing HCPI 473 of 2018, the plaintiff, a supercar salesperson and virtuoso driver of Ferraris claimed over $10M for a minor finger and neck injury. He alleged that his finger injury was “analogous to a claim by a renowned pianist for injuries to his small finger” as he could no longer drive supercars, causing him massive loss of earnings. The court disagreed, finding that he could easily drive other cars and awarded him about $1.5M instead.

Similarly, in Cheung Hon Yu v Chun Lee Engineering Co. Ltd. & Anor HCPI 87 of 2019, the plaintiff, who was a 48 year old plumbing and drainage technician claimed over $5.6M inclusive of EC for persistent back pain and psychiatric condition.  Having expressed great doubt on the genuineness of the plaintiff’s allegations based on surveillance showing him running a short distance to catch a lift, the Court ultimately reduced the plaintiff’s damages to $780,000 inclusive of EC.

In the DCEC case of Lau Yat Tung v Gammon DCEC 2121 of 2018, a construction site worker struck on the head by a tower crane was found to have 0% loss of earning capacity and was only awarded $2,480 for medical expenses under S.10A ECO. The court accepted the neurological experts’ views that he was trying to show a mental disorder by exaggerating his symptoms and disabilities whereas the surveillance footage showed he would walk normally without aids at a normal speed and gait.

On the other hand, the court found in favour of the employee in an alleged “contrived accident” that occurred after he was asked to resign due to performance issues. In Yip Kam Chun v Wellgain International Industrial Ltd DCEC 1069 of 2017, the employee alleged he fell off a chair in the office after a performance meeting with his supervisor and therefore, the accident did arise out of and in the course of employment. The employer contested that if the accident did happen, it was intentionally caused by the employee for compensation sake. Although the court found the employee unreliable and evasive, it did not go so far as to dismiss the claim as it appeared that the employee really did fall off the chair and it could not be proved that the accident was deliberately fabricated.

Some of the above judgments suggest that the courts are becoming less accepting of claimants with exaggerated claims and more open to considering the views of defendants’ experts and surveillance evidence. We hope that this trend will continue.