Dishonest plaintiff with an ulterior motive!
Lee Priscilla Siok Ai v. Secretary of Justice sued for and on behalf of Director of Highways  HKCFI 1569; HCPI 129/2019, Hon Au-Yeung J in Court, 27 May 2022
The plaintiff pleaded in the Statement of Claim (“SOC”) that her foot got caught against the metal edge of one of the steps of a footbridge. She tripped and fell and sustained knees and hip injury. On the ground of poor and flickering footbridge lighting condition, she sued the Director of Highways (“the Director”) in negligence and/or breach of statutory duty in the total sum of about HK$5.7 million.
However, the SOC failed to plead any breach of statutory provisions. The Court also disallowed the plaintiff’s Counsel to run an unpleaded case at the trial by putting forth various unpleaded allegations on the Director’s negligence.
Did the accident occur?
Various dates and versions of the accident was given in the pleadings, hospital records, joint medical expert report and even the plaintiff’s own evidence in the witness box. When challenged with her evidence against the witness statement, she put the blame on her lawyer but the court did not accept the explanation. Given the inconsistency of evidence, the court ruled that no accident occurred on the pleaded date of the accident and found the plaintiff to be totally unworthy of belief.
Did the Director owe a duty of care to the plaintiff?
It was established in common law that the owner of land over which a public right of way passes is under no liability for negligent nonfeasance towards members of the public using it.
The Court has cited the case of Yang Yee Man, the administratrix of the estate of Lam Lok Kin, Deceased v. Leung Hing Hung  HKCFI 796;  3 HKLRD 194; HCPI 443/2010 (25 April 2014), in which Bharwaney J commented that the common law rule absolving highway authority from liability for nonfeasance remains valid Hong Kong law. This contrasted with the Highways (Miscellaneous Provisions) Act of 1961 in the United Kingdom which abolished the immunity of highway authority for nonfeasance.
Applying the common law rule and the distinction between misfeasance (making things worse) and nonfeasance (not making things better), the Court held that as the footbridge was a public right of way, the Director owed no duty of care to the plaintiff. The failure to provide sufficient lighting by a public authority as pleaded by the plaintiff, was held to be nonfeasance rather than misfeasance, of which the case should be dismissed for lack of duty of care to the plaintiff.
Was there any breach of duty of care by the Director?
The Director has maintained a system of maintenance of the road network to ensure safety of users. There was contractor to conduct monthly inspection and it did not identify any defect 1 to 2 days before the alleged accident. The lighting at the footbridge was also operated in accordance with manual. EMSD was engaged to conduct patrols and function tests. The Court held that the Director has tried to make things better by ensuring better lighting and that faulty lights or road surface were repaired, but not making things worse. There was no breach of duty (if there was one) on the part of the Director.
Exaggerated quantum and ulterior motive
The plaintiff based her claim of HK$5.7 million on a subsequent traffic accident (which was 7 months afterwards) that caused her damages. She was condemned by the court as lack of credibility.
There was no causal link between the injuries the plaintiff sustained in the traffic accident and that in the current alleged accident. She was also found walking without any aid in the traffic accident case. The plaintiff’s pain was also exaggerated without support of any objective medical evidence nor the joint medical report. The hospital consultation summary even recorded that the plaintiff’s husband urged the senior medical officer to write a letter supporting their application for public housing with a wider flat and balcony. The plaintiff’s alleged income also did not match with the tax returns and she failed to look for jobs.
The Court held that the plaintiff has lied from liability to quantum and had an ulterior motive of claiming public housing unit under the pretense of being wheelchair bound. The court dismissed the case and penalized the dishonest plaintiff with indemnity costs.
The present case raises the issue of whether liability for negligence should be imposed on public authorities. The distinction of misfeasance and nonfeasance would be the determining factor.
In this case, the plaintiff’s Counsel made his submission based on the Director having “control” over the footbridge and on the question of fairness, justice and reasonableness in imposing a duty on the Director. However, the Court rejected the Counsel’s submission because such duty was not pleaded in the SOC in the first place. This clearly reflects that pleading cases with sufficient particulars is essential. In view of the Court’s comments, if the case had been pleaded properly with details of particulars, the Court might have considered if imposing the pleaded duty was justified and hence the outcome might have been different.
Further, given that the present case contained no investigation report or eye witness, the plaintiff’s credibility became utmost important. The court would no doubt scrutinize the contemporaneous documentary evidence against the probabilities and logicality of the plaintiff’s evidence. Worst still, the plaintiff was found to have exaggerated her injuries with ulterior motive – to obtain public housing. The court could hardly ignore such alarming indicator of incredibility. If a plaintiff is found dishonest, not only would he or she lose her claim, but also suffer further consequences such as the indemnity costs order. The Court even ordered the present judgment to be given to the Commissioner of Inland Revenue for appropriate action as the plaintiff lied about her income.