Plaintiffs with Claims History and Their Solicitors Beware! – Analysis of Faisal v Ocean Park Corporation

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.