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Plaintiffs With Claims History And Their Solicitors Beware! – Analysis Of Faisal v Ocean Park Corporation – Personal Injury


Summary

In the Faisal v Ocean Park Corporation (DCPI 961/2019)
judgment handed down on 7 July 2022, His Honour Judge Harold Leong
of the Hong Kong District Court found the Plaintiff to be an
unreliable and dishonest witness, who exaggerated the manner of his
accident, the extent of his injuries, and his pre-accident
employment status. In addition, the Judge was concerned that the
Plaintiff’s solicitors, who also acted for the Plaintiff in a
previous accident claim in 2015, may be supporting the Plaintiff
“in blatantly attempting to mislead the Court and committing
perjury”. As such, the Court directed the present Judgment be
referred to the Department of Justice and Law Society of Hong Kong
for investigation.

Furthermore, in criticising the Plaintiff’s medical expert
to have “completely failed his duty as an independent expert
to the Court”, the Judge reiterated that an expert should be
properly instructed that he owed his duty to the Court and should
give an independent opinion on the balance of probability based on
available evidence.

Background

The Plaintiff claimed to have a slip and fall accident in the
lavatory of Hong Kong Ocean Park with his neck hitting the toilet
bowl on 15 March 2017. Interlocutory judgment on liability was
entered by consent. This was the hearing for assessment of
damages.

Judgment

In assessing the appropriate award for pain, suffering and loss
of amenity (PSLA) from the accident, the Court examined the extent
of the Plaintiff’s injuries and considered the opinions of
orthopaedic experts from all parties in the Joint Medical Report.
In this regard, the orthopaedic experts gave completely different
medical opinions in relation to the Plaintiff’s injuries and
diagnosis. In this case, the Plaintiff’s expert opined that the
Plaintiff was suffering a compression fracture while the
contemporaneous medical evidence did not support such diagnosis.
The plaintiff’s expert made such diagnosis by giving the
“benefit of doubt” to the Plaintiff based on the
latter’s subjective complaints. The Judge disregarded the
medical opinion made by the Plaintiff’s expert, noting that the
Plaintiff’s expert should not give the Plaintiff “the
benefit of doubt” when giving medical opinion and that it was
not helpful to the Court to support a diagnosis based upon the
subjective medical history given by the Plaintiff.

The Judge reiterated that an expert should be properly
instructed that he owed his duty to the Court and should give an
independent opinion on the balance of probability based on
available (objective) evidence and not on the subjective history
given by the Plaintiff, while cherry-picking objective evidence
that suits the instructing party’s case.

In assessing the Plaintiff’s claim for loss of earnings, the
Court raised serious doubt about the purported documentary evidence
of the Plaintiff pre-accident employment, to which he made
inconsistent claims. In particular, according to the Business
Registration search, one of the alleged employers of the Plaintiff
did not commence business until six months after the alleged
contract date; and despite the claimed employment and salaries, the
Inland Revenue Department stated that there was no income
information of the Plaintiff from 2012 to 2018. The Judge
considered that the Plaintiff simply made up his evidence as he
went along and “would lie to whoever at whatever time for his
own gains and advantage”. As such, the Judge was not convinced
that the Plaintiff had any gainful employment prior to the
accident; therefore, no loss of earnings was awarded. In any case,
the Plaintiff did not claim for any future loss of earnings which
was “mystifying” to the Court given that it was the
Plaintiff’s case that he did not work after his accident.

Worst still, the Plaintiff filed three previous claims for
accidents met in 2013, 2014 and 2015 respectively prior to the
present action. In his 2015 accident claim, the Plaintiff was
represented by the same law firm and set of solicitors, who helped
the Plaintiff to pursue a claim of full loss of earnings from the
2015 accident, but then went on to plead that his client worked
during the same period in the present case against Ocean Park. The
Judge was concerned that the solicitors, being officer of the
Court, may be supporting the Plaintiff “in blatantly
attempting to mislead the Court and committing perjury”. As
such, the Court directed that the present Judgment be passed to the
Department of Justice and Law Society for investigation.

In the end, only HK$35,770 plus interest (with HK$25,000 and
HK$10,770 being PSLA and special damages, respectively) was
awarded, which was well below the Plaintiff’s claim and within
the jurisdiction of the Small Claims Tribunal.

Takeaway

The present case serves as a warning from the Court to dishonest
claimants can get caught out by their own inconsistencies.

Through this Judgment, the Judge also reminded officers of the
Court (including but not limited to solicitors and medical experts)
of their legal and ethical obligations to participate in the just
functioning of judicial system, failing which may face referral
from the Court to the Department of Justice or the Law Society of
Hong Kong for investigations.

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This
Mayer Brown
article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers should seek specific
legal advice before taking any action with respect to the matters
discussed herein.



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