Hong Kong Personal Injury Brief - August 2020 edition
Whilst courts have remained open in recent months, processing of cases have slowed down due to reduced capacity and social distancing measures. We hope things can return to normal soon but it is business as usual for us at Kennedys. In this month’s brief, we highlight a recent decision where insurer was not permitted to intervene to dispute liability and some procedural wins for defendants on psychiatric expert evidence and costs sanctions for exaggerated claims. We also consider a case involving an accident overseas and jurisdiction issues, and a HK$3 million damages award for an “exoskeleton”.
Insurer not permitted to intervene
In this case, EC insurer did not apply to intervene in the proceedings until after interlocutory judgment on liability had been entered against the employer. The court only allowed the insurer to join in to dispute quantum, but not liability - Law Chung Tai v Sun Profit and Falcon Insurance [DCEC 606/2019]. It found that Falcon had notice of the EC proceedings for at least 9 months before the joinder application and also had consent of the employee’s former solicitors to join in the EC proceedings but failed to do so. Accordingly, if Falcon still wanted to dispute liability, they could only challenge the validity of the interlocutory judgment by taking out an application to set it aside but otherwise, the judgment would stand.
This decision serves as a useful reminder to insurers to make application to join in proceedings as early as possible if they wish to dispute liability and quantum of any undefended EC case. Further, once EC judgment has been entered, it may well preclude the insurer from challenging the employment relationship and happening of the accident in any subsequent common law action as such issues would be res judicata, ie already decided and may not be re-litigated.
Psychiatric expert evidence
In Li Chiu Mui v Po Leung Kuk [DCPI 2821/2018], the plaintiff pleaded “psychiatric impairment” in her pleadings but did not seek to adduce psychiatric expert evidence in two of her earlier checklist review questionnaires (CLRQ). The plaintiff only applied for leave to adduce psychiatric expert report after the plaintiff’s orthopaedic expert recommended her to be examined by a psychiatrist.
The court refused the plaintiff’s application because it was of the view that expert psychiatric evidence would not assist the court as the already available medical documents included the plaintiff’s psychiatric treatment records. The court further noted that leave might not be granted even if an additional psychiatric report could assist the court in adjudicating the case as the plaintiff already had ample opportunities to raise her application, such as when she filed the two CLRQs or when the Form 9 confirming the plaintiff’s psychiatric condition was issued. The plaintiff’s excuse that she was awaiting approval by the Director of Legal Aid was simply not a reasonable explanation.
There has been an increasing trend by plaintiff law firms to seek psychiatric expert reports late in the proceedings in an attempt to prolong proceedings. We hope this judgement assists defendants to argue against claimants seeking to adduce psychiatric expert evidence on tenuous grounds. Conversely, defendants would also be wise to make application to seek any additional expert evidence as soon as they discover the need for one. Leave for adducing expert evidence will not be granted as of right and unjustified delay in raising such application might have adverse consequences.
Costs sanction for exaggerated claim
In this case, the defendants successfully argued that they should only bear 50% of the plaintiff’s costs since he had greatly exaggerated the extent of his injuries, which unnecessarily prolonged the cost of trial. The plaintiff alleged that he had suffered multiple injuries, including pain in the neck, back, arms, chest and ankle, after falling over in a construction site. This led to the defendants’ counsel having to go through all the medical records and cross-examine the plaintiff on his alleged injuries one by one during the trial, leading to unnecessary costs - Liu Wei Gang v Li Keng Ko and another [DCPI 2723/2018].
In Fong Chak Kwan v Ascentic Ltd and another [HCPI 242/2016], the court reiterated the principles on when claimants can sue in Hong Kong when they meet with an accident overseas. The plaintiff was a Hong Kong resident who met with an accident whilst working in Ningbo, China. He allegedly entered into an employment contract with a Hong Kong company and a US company.
It was held that a Hong Kong court has jurisdiction to hear a case if it be shown that damage has been suffered in Hong Kong, such as continuing pain and suffering, even though the actual accident took place abroad. The fundamental question to consider is whether the Hong Kong court is the proper forum to hear the case. Generally, the natural forum would be situated where the tort has occurred, but other judicial advantages may tilt the balance in favour of Hong Kong jurisdiction.
In this case, it was acknowledged that the accident had taken place in Mainland China, but it was ruled that Hong Kong was distinctively the more appropriate forum due to the following factors:
- The governing law of the employment contract was likely to be Hong Kong law,
- Most experts on quantum would be from Hong Kong and it will be extremely inconvenient for them to travel, and
- Substantive costs had already been incurred for the claim and the plaintiff was granted with legal aid.
Damages for “exoskeleton”
In a first for Hong Kong, a former rock climber who became paraplegic after a traffic accident was awarded HK$3 million for the costs of purchasing an “exoskeleton”. This is a motorised orthosis that a disabled person can “wear” to regain limb movement. Whilst the defendants argued that the technology was still under development and the plaintiff should only be awarded the costs of a powered wheel chair, the court considered that the device was reasonably necessary to restore a degree of mobility for the plaintiff. With rapid advancements in medical science and technology, we expect there will be an upward trend in claims for AI related equipment and aids with corresponding increased costs - Lai Chi Wai v Tong Hung Kwok and Tsui Siu Fai [HCPI 1235/2014].