Personal Injury

Price of exaggerating injuries?

Plaintiffs exaggerating their extent of injuries with a view to seek increased damages are no stranger to personal injuries action. But what can be the price of exaggeration?

In this issue of Wisdom Newsletter, we highlight several recent judgments to see how the Court scrutinized the Plaintiffs’ exaggerated claim in order to review defence strategy.

B K Anil Kumar v. J V Fitness LTD (Trading as California Fitness) [2022] HKCFI 946; HCPI 311/2015 (16 December 2021)

Fact

The Plaintiff brought a claim for loss and damage as a consequence of mild head injuries, abrasions injuries to his left shoulder and right hand when the ceiling structure of a steam bath got loosened and fell onto him. Amongst other things, the Plaintiff asserted that he suffered from permanent disabilities including:

(a) Post-concussional syndrome including headache and vertigo related to motion, dizziness and impairment of memory;

(b) Pain and hearing impairment on left ear;

Surveillance captured that the Plaintiff worked in a restaurant during his sick leave period. Subsequent to the disclosure of the Surveillance, the Plaintiff revised and reduced his claims to HK$3,082,895.28 in the Re-Revised Statement of Damages.

Ruling

The Court placed full weight to the inconsistent claim in the medical evidence for loss of consciousness and hearing loss and the expert report to find the Plaintiff exaggerated his conditions. The Court concluded that the Plaintiff had concealed his post-accident work capacity and inflated the damages claimed, and thus reduced his sick leave period from 11 to 5 months and disallowed the claim for loss of earning capacity and future loss of earnings.

Yuen Ka Ho v. Wong Chin Man and Others [2022] HKCFI 942; HCPI 751/2018 (6 May 2022)

Fact

The Plaintiff, a passenger of a vehicle with his supervisor and employer on board, allegedly suffered from back pain, severe waist pain and left leg numbness 2 days after traffic accident when the rear part of his vehicle was hit by a public light bus from behind.

As a result of the rear-end collision, the Plaintiff alleged that he had to walk with the aid of a walking stick and with limping gait and sought sick leave of around 1,363 days. After six months of the accident, he started to suffer urinary and bowel incontinence.

Ruling

The Court found the Plaintiff a grossly exaggerating and dishonest witness:-

(a) Contrary to what he alleged in the pleadings, medical evidence showed that he walked unaided with normal readings for straight leg raising test (“SLR test”) when he received initial treatment at the Accident and Emergency Department 2 days after the accident.

(b) Whilst he walked with a stick slowly in subsequent medical examinations, he had no problem with the SLR test.

(c) He demonstrated limping gait at joint medical examination (“JME”) but the Waddell’s stimulation signs were strongly positive in all the maneuvers.

(d) After 28 months from the JME, the Plaintiff relied on the walking stick again.

Taking into account the medical expert’s opinion of heavy exaggeration and magnification with heavy features of inorganic element, the Court found that the Plaintiff’s alleged symptoms are not supported by medical evidence and he faked his symptoms before the treating doctors. Sick leave was allowed for 6 months and PSLA was awarded at HK$10,000 only. The Plaintiff’s action was dismissed as he had already received employees’ compensation which far exceeded the damages assessed. Having found that the Plaintiff faked his symptoms, the Plaintiff was ordered to pay the Defendants’ costs on indemnity basis. The Court also invited the Director of Legal Aid to consider seeking a wasted costs order against the solicitors acting for the Plaintiff.

Chan Siu Lung v. Yip Kam Shui and Others [2022] HKCFI 970; HCPI 354/2019 (4 April 2022)

Fact

The Plaintiff suffered from right epidural haematoma, fractured skull, abrasion over both knees, post-concussion syndrome, adjustment disorder and hip injuries after falling from the unguarded hop-up platform and landed on his occiput. He was given 1,598 days of sick leaves. The Plaintiff further alleged that he could not resume pre-accident job and was troubled by:

(a) Intermittent headache and dizziness, associated with disequilibrium, vertigo and nausea;

(b) Lower limbs weakness;

Under surveillance, the Plaintiff could walk with normal gait like ordinary people without any balance problem or any weakness in the lower limbs. He simultaneously manipulated his mobile phone in multiple steps without holding on handrails or support whilst walking upstairs. The Defendant’s neurological expert also found the inconsistencies in his alleged symptoms compared with the surveillance findings.

Ruling

The Court agreed that the Plaintiff brought along the walking stick to three JMEs to impress the experts despite that he could walk unaided and there was no explanation of the sudden deterioration at the time of the examinations, except the likelihood of malingering and exaggeration.

The Court found it inconsistent with someone complained of having occasional headache, dizziness and fear of height and the fact that the Plaintiff tended to exaggerate his symptoms or likely to be a malingerer cannot be ignored and should reflect on the findings of the extent of his residual impairment. Sick leave period was reduced from 53 to 36 months. No future loss of earnings was allowed.

Comments

Exaggeration of claims can have serious consequence for Plaintiffs and their solicitors, as in the case of Yuen Ka Ho. It can be pricey to them.

Close scrutiny to the medical evidence is the very first step to decide whether the Plaintiff tends to exaggerate his symptoms and conditions.

Proper discovery exercise shall follow.

When the claim size justifies, always considers engaging discreet surveillance to ascertain the Plaintiff’s conditions and employability which is a useful tool to attack the Plaintiff’s inconsistent claim such as B K Anil Kumar and Chan Siu Lung.

Favourable surveillance findings will certainly assist medical experts to take heed of potential exaggeration and malingering at the joint medical examination.

Last but not least, give a second thought on making generous settlement offer at pre-action stage, as it would pose difficulty to negotiate a realistic settlement thereafter.