Personal Injuries litigation in Hong Kong: What costs and interest consequences await the dishonest claimant?
The High Court of Hong Kong has recently expressed severe criticism against dishonest and exaggerated personal injuries claims, which have led to serious adverse costs and interest consequences against the problematic claimants. Simon Wong and Abigail Liu discuss three recent cases which highlight the Court’s zero-tolerance attitude towards this type of litigant misconduct.
The Yeung Ho Man case: “A multitude of lies”
The Claims
In Yeung Ho Man v Shum Kin Leung & Anor [2020] HKCFI 2531, the plaintiff sustained personal injuries in a road traffic accident in 2014. He claimed to have suffered serious physical injuries to multiple body parts, including his face, neck, back, right upper limb, and right lower limb. He alleged that he had weakness in his right upper limb and total paraplegia of right lower limb and was wheelchair bound. He also claimed to have suffered from hearing loss in both ears, impairment to both eyes, urinary urgency/incontinence, and dizziness which caused him to lose balance frequently.
Mentally, he allegedly suffered from persistent insomnia, poor mood, nightmare, auditory hallucinations, flashbacks and a vivid recollection of the accident, on top of psychotic depression and post-traumatic stress response. He said he was totally dependent on his wife. As a result of his multiple complaints, medical expert evidence on four disciplines were obtained. At the hearing for assessment of damages, the plaintiff claimed damages in the sum of more than $10 million.
Delivering judgment, Bharwaney J expressed serious disapproval of the plaintiff’s conduct:
“The plaintiff has told me a multitude of lies. He is a consummate, flagrant and egregious liar and I disbelieve his evidence. I find that he is a malingerer … I entirely reject his evidence and his claims that he suffered a multitude of disabilities …”
The Court’s ruling on damages and costs
Damages were assessed at $112,000 (only 1% of his claim), which did not exceed the employees’ compensation that the plaintiff had already received. The action was dismissed, and the plaintiff was ordered, on nisi basis, to pay the costs of the action to the defendants on an indemnity basis.
Subsequently, the Director of Legal Aid made an application to vary the costs order nisi, and contended that the plaintiff should not be held liable for costs on indemnity basis for the whole period of the proceedings. The Director argued that the plaintiff only received the employees’ compensation in February 2019, but this action was commenced in May 2017. Further, the defendants only made a sanctioned payment in March 2019 and the plaintiff would have up to April 2019 to accept the same.
The Director therefore submitted that the costs prior to February 2019 should be paid by the defendants, while the plaintiff should bear the costs between February 2019 and April 2019 on a party and party basis, and only the costs after April 2019 on an indemnity basis.
On the other hand, the defendants argued that it was an abuse of court process for a claimant to present a dishonest case as to his injuries and on quantum; if there was a finding of dishonesty, it would only be fair to order the plaintiff to pay costs to the defendants on an indemnity basis irrespective of the amount of damages awarded.
In his decision on costs [2020] HKCFI 2781, Bharwaney J accepted the defendants’ submissions, holding that:
“even though I assessed damages in the sum of $112,000 and even though the 1st sanctioned payment in the employees’ compensation proceedings in the sum of $450,000 was only made on 21 November 2018, applying the principles I have referred to above and having regard to the egregious character of the plaintiff’s conduct, I exercise my discretion and order the plaintiff to pay the costs of the action, from the commencement of the action on 29 May 2017, to the 1st and 2nd defendants on an indemnity basis, to be taxed if not agreed.”
As the defendants made a sanctioned payment in March 2019, the Court also ordered the plaintiff to pay enhanced interest on costs at the statutory maximum of 10% above judgment rate. The maximum rate was ordered to mark the Court’s disapproval of the plaintiff’s improper conduct who was found to be a blatant and unmitigated liar, to have misled the Court and fabricated evidence.
The “incredible” case of Angbuhhang Netra Jang
In Angbuhhang Netra Jang v Liang O’Rouke Construction Hong Kong Limited & Anor [2020] HKCFI 2928, the plaintiff sought damages for injuries to his right middle finger and left middle and ring fingers and other consequential loss and damage. He claimed that these injuries occurred in November 2014, when his fingers were trapped inside, and squashed by, a bundle of steel re-bars while it was being lifted onto the loading platform of a truck-mounted crane.
On the first day of trial, the plaintiff put forward a different case on the accident. Lisa Wong J accepted the defendants’ submissions and held that the plaintiff should not be allowed to run a case on liability based on the new version of the accident. In any event, the Court indicated that even if the plaintiff had been permitted to rely on the new version, she would have found such accident “incredible” and that the plaintiff had not discharged the burden of proving the accident anyway. The plaintiff’s claim was dismissed, with costs, on nisi basis, to be paid by the plaintiff on a party and party basis.
On the strength of a total of 4 sanctioned payments between January 2015 and March 2016, the defendants applied to vary the costs order nisi. In her decision on costs [2021] HKCFI 232, Lisa Wong J conveyed strong disapproval of the plaintiff’s litigation conduct, and held that she should exercise her discretion to include a non-compensatory element to the award of enhanced interest. She accepted the defendants’ submissions and ordered the plaintiff to pay costs on an indemnity basis after February 2015, with enhanced interest at the maximum rate of 10% above judgment rate.
The Thapa Hari Bahadur case: “littered with inconsistencies”
In Thapa Hari Bahadur v Paramount Engineering & Manpower [2022] HKCFI 334, the plaintiff was a compressed air worker and was required to change the cutters or cutter tools of the head of a Tunnel Boring Machine which was used for tunnel excavation. He was allegedly involved in two accidents, in June 2013 and September 2013 respectively, while working inside the chamber at which compressed air was applied.
He said he lost consciousness after the second accident. In the 8 years that ensued, he was assessed and treated by doctors across 17 types of general and specialist disciplines in both the public and private sectors. Throughout his treatment history, he made a wide range of complaints of pain in his head, skull, bone and joints, neck and back, pelvis and testicles, upper and lower limbs, stomach, chest and loin, ears and eyes, teeth, mouth and jaw, and even general pain. He also claimed to have suffered psychiatric injuries. He sued for damages of over $9 million.
After trial, Au-Yeung J held that the plaintiff’s evidence was littered with inconsistencies and contradicted by indisputable documentary evidence or the surveillance video clips. Psychiatrically, the plaintiff at most suffered from adjustment disorder with mixed depressed mood and anxiety; moreover, he enjoyed maximal medical improvement on psychiatric ground 3 months after he received psychiatric treatment, and there was no permanent impairment of functioning.
It was highlighted that there was egregious exaggeration of the plaintiff’s symptoms. He even feigned symptoms during the trial when he used elbow crutches and pretended to have hearing disability and to be hospitalised for no valid cause.
The Court found that the plaintiff was dishonest in pursuing the claim. Damages were assessed at $270,500 (only 3% of his claim), which did not exceed the employees’ compensation and interim payment that the plaintiff had received. The claim was dismissed with a costs order nisi to be paid by the plaintiff on an indemnity basis.
As the defendants had made a sanctioned payment of $100,000 in July 2019, they made an application to vary the costs order and requested the plaintiff to pay enhanced interest on costs after August 2019. In her subsequent decision [2022] HKCFI 1305, Au-Yeung J allowed the application. In determining the rate of the enhanced interest, the Court held that the plaintiff’s refusal to accept the sanctioned payment made at an early stage was totally unreasonable, which wasted much of the court’s resources, legal aid funds, the defendants’ costs and even public medical resources. The Court said she had no hesitation in ordering the Plaintiff to pay enhanced interest on costs at the statutory maximum of 10% above judgment rate.
Conclusion
The above cases illustrate that, where the plaintiff is found to have been dishonest in pursuing a personal injuries claim, the Court would have no hesitation in ordering the plaintiff to pay costs to the defendant on an indemnity basis. This may be so irrespective of the amount of damages awarded.
As to the enhanced interest following sanctioned payments, the Court is also readily prepared to include a non-compensatory element in the award. In all the above cases, the Courts awarded enhanced interest at the statutory maximum of 10% above judgment rate.
Simon Wong acted for the successful defendants in the Yeung Ho Man case (instructed by Deacons), the Angbuhhang Netra Jang case (instructed by Kennedys) and the Thapa Hari Bahadur case (instructed by Mayer Brown).
| Simon Wong
Simon is qualified to practise law both in Hong Kong and California USA. He specialises in personal injury litigation and commercial dispute resolution. In his personal injury practice, he has been instructed in more than 400 personal injury and medical negligence cases and has extensive experience in representing claimants as well as defendants. Simon’s commercial litigation experience includes company and shareholders’ disputes, insolvency and contractual disputes. He has been ranked as a “Leading Junior” in Legal 500 Asia-Pacific 2021 and 2022. Visit Simon’s profile for further details. |
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Abigail Liu
Abigail joined Chambers in 2019 and is developing a broad civil and criminal practice. She has experience in various areas such as family and matrimonial matters, public law, land, tort, personal injuries, employee compensation, commercial litigation, trusts and probate. In Luk Wai Ho v. Fang Yu (DCCJ 4744/2019) [2021] HKDC 1345, Abigail successfully resisted an appeal against the refusal of a summary judgment application for HK$1,000,000 in a dishonoured cheque. She also acted for the successful Defendant in resisting the summary judgment application before Master. Abigail has also defended an election petition in 董健莉 對 吳定霖及另二人 [2021] HKCFI 514 (with Mr. Jeffrey Tam) where the Court interpreted section 51 of the District Councils Ordinance (Cap. 547) for the very first time. Find out more from Abigail’s profile.
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This article was first published on 24 May 2022.
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.