Personal Injuries — Christina Lee successfully defends claim against Fairwood Fast Food Limited

By a judgment dated 23 February 2024, the Court found the Plaintiff’s claim to be entirely incredible in light of the lack of contemporaneous records and her inconsistent accounts of how the alleged accident occurred, and dismissed her claim on liability: Yip Sze Lung v Fairwood Fast Food Limited [2024] HKDC 303. The judgment provides important guidance on assessment of alleged accidents and trial preparation.

Christina Lee, instructed by Messrs So, Lung & Associates, appeared for the defendant. Valerie Tang provides her analysis of the judgment below. 

Facts

At the material time the Plaintiff was employed as a dishwasher in one of the Defendant’s restaurants. It was pleaded that she was dragging a large pot filled with water to wash when she slipped and fell, causing injuries to her waist and lower back (the “Accident”). Both liability and quantum were disputed.

Liability

Despite the Plaintiff’s pleaded case, the Court found that the Accident did not occur in the manner as pleaded. Most notably, there were no contemporaneous records or documents which supported the Plaintiff’s allegations of how the Accident occurred. Although she could have told her manager, a Chinese Medical Practitioner and a “western” doctor on the day of the Accident that she had an Accident and injured her waist and lower back, she never did. On the contrary the evidence of her manager and the reports of the medical practitioners she consulted on the day of the Accident did not support the happening of an Accident, and instead suggested that the Plaintiff had been suffering from serious pre-existing degenerative back, back pain and leg problems for a long time.

The Court also found the Plaintiff’s oral evidence to be inconsistent and untruthful. Specifically, she attempted to attribute all her injuries to the Accident despite clear evidence of pre-existing injuries and/or symptoms.

The Plaintiff’s claim on liability was dismissed.

Quantum

On quantum, it was common ground that the Plaintiff suffered from severe pre-existing degenerative condition on her lumbar and cervical spines which caused lower back pain even before the accident. The percentage discount for pre-existing degeneration was disputed.

Upon considering the expert medical evidence, the Court held that a 95% discount was appropriate forthepre-existing degeneration. The evidence of two episodes of exacerbation during the pre-trial period was accepted leading the Court to conclude that with or without the Accident the degeneration was so severe that the Plaintiff would not have been able to continue to work as a dishwasher. As such, no loss of earnings beyond her sick leave period was granted, and there was no loss of earning capacity.

Should the Plaintiff have been able to establish liability, a sum of $150,000 would be appropriate for general damages, together with damages under the heads of loss of earnings and MPF, and special damages. That said, in light of the 95% discount, the amount recoverable would in any event have been reduced to a negative figure after taking into account the employees’ compensation received.

The Plaintiff’s claim on quantum therefore also failed.

Court’s direction on practice and procedure

The Plaintiff originally put in a claim of $200,000 for tonic food and close to $500,000 for medical expenses. At trial, the claim for tonic food was withdrawn and the medical expenses claim was reduced to $100,000. However, nine box files of medical and tonic food expenses receipts were produced which the Court found to be totally unnecessary.

The Court stressed that it was incumbent upon the Plaintiff’s solicitors to agree with the Defendant a summary of receipts with a master copy of the receipts made available in case of disputes. Producing thousands of pages of receipts is wasteful and inappropriate, especially in this case where the claims were either withdrawn or substantially whittled down. Costs for producing the impugned bundles were disallowed.

Christina W. Lee

Christina read law as an external student of the University of London and sat the Bar Finals examination of England and Wales in 1988. That year she was called to the English Bar and the Hong Kong Bar. She has developed a practice in personal injuries, medical negligence and insurance related matters over the years.

Before joining the Bar Christina was a simultaneous interpreter with the Hong Kong Government leaving the civil service in 1988 when she was Chief Interpreter (Simultaneous Interpretation).

More details can be found in Christina’s profile. 

Valerie Tang

Valerie was called to the Bar in 2019. Since joining Chambers, Valerie has established a broad civil practice with an emphasis on commercial and matrimonial matters. She has also been a Member of the Chartered Institute of Arbitrators since 2020.

In Atkins China Limited v China State Construction Engineering (Hong Kong) Limited [2020] HKCFI 2092, Valerie successfully resisted an application for an interim injunction to stay arbitration proceedings, which concerned a dispute over the design of certain sections of the Hong Kong-Zhuhai-Macau Bridge.

More recently, Valerie obtained a return and non-removal order for children abducted from Hong Kong to a non-Hague Convention contracting state in MF v LJL (FCMC 655/2023).

Valerie also regularly acts as sole advocate in land, trust and probate matters. She also has experience in matters relating to mentally incapacitated persons, including Part II inquiries and other contentious applications.

Valerie obtained her law degree from the Chinese University of Hong Kong and read International Relations at the London School of Economics and Political Science prior to her legal studies. She also served as a Legislative Council assistant for the Legal Sector Constituency office from 2015 to 2018.

More details can be found in Valerie’s profile.

This article was first published on 18 March 2024.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.