Favourable award and substantial costs recovered by Kennedys in recent personal injuries assessment

In a recent High Court judgment of Sit Ka Chun v. Wing Wong Scaffolding Ltd & Others (HCPI 144/2020, 15 June 2022), Master Alexander Tang refused to accept the Plaintiff’s case on the extent of injuries in a construction injury claim and awarded around 1/10 of his pleaded claim. The Court also clarified several important principles of adverse inference for not calling witness at trial.

Kennedys acted for the successful Defendants and have recovered substantial costs on an indemnity basis at enhanced interest rate on the strength of the Sanctioned Payments by the Defendants.

Background

On 13 May 2017, to avoid hitting another worker who suddenly emerged, the Plaintiff stepped on a piece of debris and fell and sustained injuries to his left ankle and knee. Liability was admitted.

The issues before the Court are: (i) whether the Plaintiff’s left knee issue was caused by the accident, (ii) whether the Plaintiff was able to return to his previous work as a scaffolding worker, (iii) whether adverse inference should be drawn against the Defendants.

On issues (i) and (ii), having found that the Plaintiff’s viva voce evidence is inconsistent with the contemporaneous evidence, the Court did not consider the Plaintiff to be a credible witness. There is no mention of his left knee injury in the medical records of his first few medical treatments. The Court found that the left knee pain was not caused by the accident and the Plaintiff was able to return to his scaffolding job.

Adverse inference

The Plaintiff invited the Court to draw an adverse inference against the Defendants based on their failure to call their safety officer to give evidence on the handwritten document which allegedly recorded the accident at the scene.

The doctrine of adverse inference is a fact-finding device designed to fill, as a last resort, evidential lacuna when the evidence cannot be obtained. It is the last port of call, not the first. A Court will always prefer relying on actual evidence rather than inferences as to what unavailable evidence would contain.

The Court summarized the doctrine of adverse inference as follows:-

First, the Court will consider whether a party is reasonably expected to provide the evidence in question, but failed to do so without good reason.

Relevant factors include: whether the evidence is available to the party, how aware the party is of the need to disclose the evidence, how material the evidence is etc., whether the party is given an opportunity to explain the non-provision etc.

Second, even if a party can be reasonably expected to provide the evidence, it is still the question of whether the Court can be persuaded to draw the requisite inference after taking into account of factors including: the strength and nature of the case, nature of the unavailable evidence.
It is generally not open to simply sit back and rely on an opposing party’s inaction and invite the Court then to draw adverse inferences from such inaction.

Applying the above principles, the Court refused to draw adverse inference against the Defendants. The Plaintiff has not put what transpired at the Safety Department in issue in a clear and timely manner. The point was only belatedly and tangentially raised very shortly before trial by way of an informal documentary request.

Decision

The Court held that the Plaintiff’s evidence was inconsistent and contradicted by documentary evidence including medical evidence and his own Witness Statement.

Having accepted the Defendants’ arguments, the Court awarded $448,861 (net of EC $605,680) plus interest and costs to the Plaintiff, representing around 1/10 of the Plaintiff’s pleaded claim of 4,294,650 (net of EC). The Defendants have also successfully varied the costs order nisi to provide for indemnity costs at the enhanced interest rate and recovered substantial costs from the Plaintiff.