Personal Injuries — Hong Kong Court finds two claimants unable to prove the alleged accidents and dismisses their personal injuries claims
On 30 October 2023, the Hong Kong Court handed down two judgments dismissing the claimants’ personal injuries claims because they were unable to prove the pleaded circumstances of the accidents.
In Khalid Ali v Megastrength Security Services Company Limited  HKDC 1549, the plaintiff was a security guard in the employ of the defendant. He was assigned to work at the pedestrian entrance of a commercial building in Central to direct traffic, help passengers alighting from vehicles and unload their personal belongings from the boot. He alleged that while he had lifted a heavy suitcase of a taxi passenger from the boot and placed it on the ground, he suffered right lower limb injury.
The trial judge held that the happening of the accident was a bare assertion by the plaintiff, which was also contradicted by the evidence. After the alleged injury, the plaintiff told his colleagues that he had sudden pain without revealing his lifting the luggage as the cause. He further told his superior that he was not injured during work. In an incident report, he stated that his pain was possibly due to sciatica. He stated in the Notification of Accident to the Labour Department that the cause of the accident was prolonged standing. Further, the defence witness had reviewed the CCTV footage but did not see the plaintiff lifting any luggage on that day. The medical notes also recorded that there was no injury and the case was classified as non-traumatic.
The Court found the alleged accident did not happen at all, but was only a fabrication. The plaintiff’s claim was dismissed, and the plaintiff was ordered to pay the defendant’s costs on indemnity basis.
Wu Dip Oi
In Wu Dip Oi (胡蝶愛) formerly known as Wei Yuling (衛玉玲) v Harbour City Estates Limited  HKDC 1450, the plaintiff was a dish cleaning worker and was assigned to work in a restaurant located in a shopping complex in Tsimshatsui. The defendant was the manager and occupier of the complex. The plaintiff alleged that when she walked to a back corridor outside the rear door of the restaurant, she slipped on the wet and slippery floor of the corridor, and sustained right knee and left upper limb injury.
At trial, the plaintiff’s evidence on how the accident happened changed a few times. Under cross-examination, she first agreed that she could not remember what caused her fall, and that she was possibly tripped over an object. She further agreed that the place of the accident was not slippery. However, she later changed her evidence and alleged that she actually slipped. In a medical note recorded around 4 weeks after the injury, she told the doctor that she could not recall if she slipped or tripped. When being asked why she could recall at trial, she was unable to provide an answer. Further, in her Notification of Accident and a declaration submitted to the Labour Department, she alleged that she fell because of water and object(s) on the floor.
The Court found that the plaintiff was unable to tell how and why she fell, and therefore failed to discharge her burden of proof to show her allegation that she fell because she slipped on slippery floor. The plaintiff’s claim was dismissed with costs.
It is reminded that the burden of proving the pleaded case on how the accident happened lies on the plaintiff. The plaintiff’s evidence ought to be consistent, not contradicted by undisputed or indisputable evidence, and inherently probable. Otherwise, it will be open to the defendants to challenge the genuineness of the pleaded accident and/or circumstances of the same.
Simon Wong, instructed by Anthony Siu & Co, acted for the successful Defendant in Khalid Ali, and instructed by Munros, acted for the successful Defendants in Wu Dip Oi.
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Legal 500 Asia-Pacific 2023, Leading Juniors — Commercial Disputes, Labour and Employment
Simon is qualified to practise law both in Hong Kong and California USA. He specializes in personal injury litigation and commercial dispute resolution. In his personal injury practice, he has been instructed in more than 500 personal injury and medical negligence cases and has extensive experience in representing claimants as well as defendants. Simon’s commercial litigation experience includes company matters, shareholders’ disputes, banking disputes, insolvency matter and contract claims.
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This article was first published on 3 November 2023.
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.