Hong Kong Personal Injury Brief - March 2022 edition
Recent cases suggest courts may be continuing to crack down more on unmeritorious claimants who pursue hopeless litigation. In October 2021’s PI Brief we referred to several judgements of HHJ Andrew Li (HHJ Li) where claimants and/or their solicitors were penalised with indemnity costs and/or wasted costs orders in pursuing a groundless claim. Since then, both the High Court and the District Court have readily taken a more robust approach against meritless claims.
In Thapa Hari Bahadur v Paramount Engineering & Manpower HCPI 408/2016, the Plaintiff’s claim was dismissed given employees’ compensation (EC) exceeded the damages awarded. The Plaintiff, acting in person after legal aid had been discharged, claimed he met with two separate accidents while he was working in a compression chamber (Working Chamber) at a construction site, causing him to sustain various injuries including vasovagal syncope and hearing loss. The Defendants admitted liability for the 1st accident and successfully argued that the Plaintiff suffered no permanent physical disability or financial loss. As for the 2nd accident, the Court found no liability by the Defendants given its reasonable system for ensuring unfit workers would not work in the Working Chamber, and it was the Plaintiff who voluntarily filled in the questionnaire confirming his fitness and suitability to work and failed to declare his own illness before work. The Court also found the Plaintiff had exaggerated his injuries, feigned his hearing disability and was a highly incredible and dishonest witness. Costs were awarded to the Defendants on an indemnity basis.
In Ying Ka Chun v J.V. Fitness Limited (in liquidation) HCPI 58/2018, the Plaintiff, a personal trainer, failed to establish liability on the Defendants’ part for a slip and fall accident where he allegedly slipped and fell inside the changing room of a fitness centre (Changing Room) operated by the 1st Defendant and sustained lower back contusion injury. The Court held that the small patch of water on the floor of the Changing Room was a rare occurrence based on the Plaintiff’s own account and only appeared a few minutes before the accident took place. As such, the wet patch could not have been reasonably detected and mopped up despite the Defendants having a reasonable system of regular inspection in place, including a further round of cleaning just before closing hour. The Court opined it would be too exacting to hold the occupiers liable as the patch of water was unlikely to have been detected and/or removed even if regular inspection took place say once every 30 minutes to one hour. For completeness, the Court held that had liability been established, the Plaintiff should bear 50% contributory negligence as he worked at the fitness centre almost every day and should have been very familiar with the layout and condition of the Changing Room, and he was generally aware that the locker area was liable to be wet and slippery given its proximity to the shower area despite it being a rare occurrence.
In Yip Chi Keung v Ming Tai Construction Engineering Company Limited HCPI 272/2019, the Defendants had conceded to bear 85% liability so the Court was only asked to consider the issue of quantum. The Defendants raised a challenge against the seriousness of the Plaintiff’s injuries and state of recovery, arguing that the Plaintiff should have achieved satisfactory recovery from a simple sprained left shoulder and left elbow within several months of the accident and should therefore be able to work thereafter. The Court did not find the Plaintiff to be a credible witness due to various inconsistencies in his evidence as to the number of days worked per month before the accident, range of movement of his left shoulder and exaggeration of his injuries, and surveillance evidence showing no impairment. Hon K Yeung J accepted the evidence of the Defendants' orthopaedic expert Dr Arthur Chiang was well reasoned, ultimately finding that the Plaintiff should receive no damages since the amount was less than employees’ compensation received by the Plaintiff earlier, even taking into account interest.
The District Court also found no liability in Tsue Lai Kee v Nanyang Commercial Bank, Limited DCPI 1127/2017, where the Plaintiff allegedly slipped and fell on the wet and slippery floor when stooping down and lowering his body to get past a half-shut rolling gate installed at the entrance of the Defendant’s bank (Bank). The Defendant contested liability on the basis that the accident spot was dry. Upon hearing the evidence of the Plaintiff and two of the Bank’s managers, HHJ Li was not convinced there was any water or liquid on the floor given no water sources nearby, evidence suggesting the cleaners would sweep and wipe the floor near the Bank entrance and the Plaintiff’s own admission that he did not see the cleaners using water to mop the floor at any time. The Court considered the Plaintiff more likely lost balance when he tried to pass under the half-shut gate too quickly, causing the black mark on the floor after the accident. HHJ Li further condemned the Plaintiff’s solicitors for pleading PSLA at $450,000 in the Revised Statement of Damages but conceding to $150,000 by the trial around 10 months later, despite no changes in the Plaintiff’s condition or medical evidence in support of his claim, which the Learned Judge considered to be misleading, not conducive to assisting parties reach an early settlement, and clearly going against the underlying objectives of the Civil Justice Reform. HHJ Li also opined that even if the Defendant was liable, the employees’ compensation award received by the Plaintiff would far exceed any damages, remarking that even though the Plaintiff knew his claim would very likely fail, he still decided to pursue such a hopeless and much exaggerated claim despite having no legal aid. However, costs were awarded on the usual party and party basis only.
While courts appear to be warning unmeritorious claimants and their solicitors against bringing baseless claims to trial and have demonstrated increased willingness to penalise such parties and their legal representatives for doing so in appropriate circumstances. Ultimately whether or not defendants will be able to successfully defend claims against them remains, at its core, a matter of evidence and credibility of witnesses. The success of a defence at trial rests very much on thorough investigation and preservation of evidence at an early stage. Defendants and their insurers are thus encouraged to take all necessary steps to ensure that as much relevant and useful evidence is gathered and kept as quickly as possible following any accidents to ensure greater chance of a successful outcome.