News

Court makes indemnity costs order against “egregious” Plaintiff with interest at 10% above judgment rate

Simon Wong has succeeded in resisting the Plaintiff’s claim for damages for personal injuries in Yeung Ho Man v. Shum Kin Leung and The KMB Co Ltd, (28/09/2020, HCPI 547/2017) [2020] HKCFI 2531; (30/10/2020, HCPI 547/2017) [2020] HKCFI 2781. Rejecting the Plaintiff’s evidence as “a multitude of lies”, the learned Judge awarded costs to the Defendants with an enhanced interest rate that reflects the Court’s disapproval of the Plaintiff’s improper conduct.

Background

The Plaintiff sustained personal injuries in a road traffic accident involving the 1st Defendant, who was driving the 2nd Defendant’s bus. Liability was subsequently admitted, and the present proceedings focused on the assessment of damages.

According to the Plaintiff, he suffered from a multitude of physical injuries including total paraplegia of his right lower limb, hearing loss, visual impairment, incontinence, and auditory hallucinations. At the trial, the Plaintiff made further contentions such as:

• he fell unconscious after the collision, even though he was photographed at the scene of the accident with his eyes open;

• the medical doctors who examined and treated him deliberately concealed the true extent of his injuries;

• the Defendants sent him a threatening letter demanding him to admit that his disability was feigned.

The Defendant’s case was that the Plaintiff suffered from no more than contusion to his face and a mild neck soft tissue injury – both of which resolved within one month, and he was a malingerer who grossly exaggerated his symptoms.

The Court’s Findings

Mr. Justice Bharwaney entirely rejected the Plaintiff’s evidence, finding that he was “a consummate, flagrant and egregious liar” and a malingerer who fabricated, among others, the letter allegedly received from the Defendants.

The learned Judge assessed damages for PSLA in the sum of $100,000 and pre-trial losses in the sum of $12,000 for the minor injuries, a contusion of the face and a mild neck soft tissue injury without any complications, suffered by the Plaintiff.

Since the Plaintiff already received employees’ compensation at a sum that far exceeds the Court’s assessment, no damages nor any interest on damages were awarded to the Plaintiff.

Decision on Costs

Accepting the 1st and 2nd Defendants’ submissions, the Court ordered the Plaintiff to pay them, among others:

• costs of this action from the date of its commencement on an indemnity basis; and
• enhanced interest at 10% above the judgment rate.

Even though damages were assessed in the sum of $112,000 and the sanctioned payment in the employees compensation proceedings was only made on a later date, the Court still ordered the Plaintiff to pay costs of the action from its commencement on an indemnity basis – a decision based on the Court’s finding that the Plaintiff is a liar and a malingerer.

In light of the Plaintiff’s egregious conduct, the Court held that this case “provokes the exercise of the Court’s discretion to set the rate of interest that is greater than purely compensatory in order to mark the Court’s disapproval of improper conduct” and ordered that the rate be set at the statutory maximum of 10% above judgment rate.

Commentary

This case sends a clear and strong message: dishonesty and exaggeration will not be tolerated and may attract consequences in costs, including the imposition of a much higher rate of interest.

Hopefully, the ruling will go some way towards deterring parties from attempting to mislead the Court and wasting judicial resources with theatrics or fabrications.

Simon Wong, instructed by Deacons, acted for the 1st and 2nd Defendants.


 

Simon Wong

Simon was called to the Bar in 2007 and has built a solid practice specialising in personal injury litigation and commercial dispute resolution. He has been instructed in more than 400 personal injury and medical negligence cases, with extensive experience in representing claimants as well as defendants. He has been acting for numerous insurance companies and other private companies including KMB.

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 photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.