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Court disallows Plaintiff to run industrial accident claim on version of events which only emerged on first day of trial

In Angbuhhang Netra Jang v. Laing O’rourke Construction Hong Kong Ltd and Others [2020] HKCFI 2928, the Court of First Instance rejected the Plaintiff’s attempt to rely on an account of the accident that was never disclosed until the first day of trial. After reviewing the evidence including the Plaintiff’s performance under cross-examination by Simon Wong, counsel for the successful Defendants, the Court also found him to be an incredible and unreliable witness. The Plaintiff’s claim was dismissed with costs.

Background

The Plaintiff claimed damages for injuries he suffered when he was assisting in the loading of bundles of steel re-bars onto a truck mounted with a crane. According to his pleaded case, the bundle of re-bars lost balance and his fingers got trapped inside and squashed by it.

On the first day of the trial, a significantly different version of events emerged in the Plaintiff’s written opening submissions. He claimed that while the bundles were being lifted, a vehicle was moving towards the truck-mounted crane with no sign of stopping. To avert a potential collision, he used his bare hands to divert the bundle of re-bars away from the oncoming vehicle; since the crane jerked at the same time, his hands got caught between the re-bars.

Plaintiff’s credibility as witness

The Honourable Madam Justice Lisa Wong set out the Court’s approach to assessing a witness’s evidence on any issue: in addition to observing his demeanour in the witness stand, the Court tested his testimony by asking whether it is inherently plausible or implausible and whether it is, in a material way, contradicted by any other evidence that is undisputed or indisputable, if any (see §3 of the Court’s Judgment).  

Overall, the Court did not find the Plaintiff a credible witness, noting that he was “guarded, defensive and sometimes argumentative” and often evaded perfectly legitimate questions under cross-examination by counsel for the Defendants. Furthermore, the Plaintiff’s evidence was internally inconsistent and contradicted by contemporaneous documents.

New case advanced by Plaintiff – whether allowed and credible

The Court disallowed the Plaintiff to run a case on liability based on the new version of the accident which he sought to advance on the first day of the trial. Although due accommodation would be accorded to unrepresented litigants, the Court stressed that there is no licence for unfair treatment of the represented opposite party: see §42 of the Court’s Judgment.

The learned Judge cited Ribeiro PJ in Mak Kang Hoi v Ho Yuk Wah David (2007) 10 HKCFAR 552, who said at paragraph 102:

“However, industrial accident cases often raise the pleading point more clearly than others. If the accident is not shown to have taken place in the way or at the place alleged usually the plaintiff must fail.”

In the present case, the Court noted that the manner in which the accident happened was expanded and added to so much that the complexion of the case on liability has altogether changed; however, this case is worse in that the Plaintiff sought, but failed to establish an accident that had taken place in a manner different from that alleged on pleading (§§7 and 56 of the Court’s Judgment).

In any event, the Court found the Plaintiff’s new account to be incredible anyway for various reasons, including its inconsistency with other objective evidence.

Court’s rulings on liability and quantum

The Court dismissed the Plaintiff’s claim on liability. Although it was unnecessary to deal with quantum, the learned Judge was convinced that the Plaintiff has manifestly exaggerated his case on quantum in multiple aspects, including the physical injuries he sustained and his earnings at the time of the accident.

The Plaintiff was ordered to pay the Defendants’ costs of this action on a party and party basis.

Representation:

Simon Wong, instructed by Kennedys, acted for the successful 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.