Personal Injury

Defeating the Unreliable Plaintiff: Missteps and Misstatements

Lee Hoi Fai v JS Aluminium Window Group Limited, [2026] HKDC 1154, date of judgment on 20 October 2026

Fact

The Plaintiff, Lee Hoi Fai, is a senior window installation worker at the Defendant’s company. The Plaintiff met with an unwitnessed fall from a platform ladder on 12 December 2018 inside a house under construction in Sheung Shui and suffered an oblique fracture of the left calcaneum. The Plaintiff pleaded that after he drew markings on the wall for the installation of the window frame, he was climbing down the steps on an unstable foldable platform ladder and fell about 1 metre onto the ground on his left heel and buttocks. The Plaintiff further pleaded that the Defendant failed to provide suitable and safe equipment for the Plaintiff’s work, the platform ladder had no guardrails on the sides, and the Defendant failed to assign a colleague to keep the Plaintiff safe as he was ascending and descending the platform.

The Defendant contested liability and contended that markings on the wall had been finished and the Plaintiff did not need to make any further markings. The Defendant also contended that the platform could be attached with guardrails and that the platform did not shake and the Plaintiff merely mis-stepped.

Ruling

As the accident had no witness, Deputy District Judge Lee Siu Him paid extra attention to the Plaintiff’s recount of the accident and decided the Plaintiff was unable to discharge the requisite onus of proving the accident had occurred as pleaded and dismissed the case. The Judge went on to analyse the Plaintiff’s contributory negligence and assessed his damages if the Plaintiff’s claim had succeeded.

The Judge focussed on the factual disputes on whether the Plaintiff was assigned to mark the wall and whether the platform ladder shook as the Plaintiff descended and stepped on the first step. On the first factual issue, the Plaintiff testified to use measuring tools and a pen to mark the corners of the window frame installation positions and that this task was normally assigned to him. In contrast, the Defendant’s witnesses stated that the drawing of markings on the wall was done by professional levellers, who used specific tools for levelling, and so, this was not done by installation workers like the Plaintiff. The Judge found that the Plaintiff gave unclear and convoluted answers when asked to demonstrate how to draw markings on the four corners. The Plaintiff frequently showed loss of memory, but would reverse his stance upon further questioning.

On the second factual issue, the Plaintiff gave an account where he told his supervisor that he had missed a marking on one of the corners and had to climb up the platform to add the marking. Subsequently, the Plaintiff’s supervisor told the Plaintiff that he had to leave to attend to other work and left the Plaintiff unsupervised. Under cross-examination, the Plaintiff confirmed that the platform did not shake when he first ascended and descended the platform and when he ascended the platform again. The shaking only occurred when he took his first step to descend the platform. The Judge took issue with the Plaintiff’s lack of complaint regarding the platform’s shaking made to his colleagues and the Defendant immediately after the accident and the months after the accident.

The Judge stated that the Plaintiff had successfully ascended the platform twice and descended once prior to the accident without noticing any instability. Thus, the Judge deduced that on the balance of probabilities, the Plaintiff’s supervisor did not instruct the Plaintiff to draw markings in his absence and that the accident was likely caused by the Plaintiff’s inadvertent mis-stepping while descending the platform.

Notably, the Plaintiff signed a Construction Site Accident Record, just two months after the accident, which stated that the Plaintiff had inadvertently mis-stepped when descending the ladder and fell from a height of 0.75 metres. Initially, the Plaintiff disputed the authenticity of his signature on the Construction Site Accident Record and the parties obtained leave to adduce expert handwriting evidence. Yet, at trial, the Plaintiff’s counsel stated that there was no issue of authenticity of the signature. During examination-in-chief, the Plaintiff stated that he could not remember if he had signed such record. The Judge took issue with the Plaintiff’s lack of sensible explanation for abandoning his consistent denials of signing such record.

The Judge noticed that the Plaintiff was often unable or unwilling to answer simple questions directly, and gave convoluted and conflicting evidence. The Judge ultimately decided to approach the Plaintiff’s testimony with caution. Taking into account that the Plaintiff was 56-years-old at the time of the accident, had been working since he was age 16, and worked in the construction industry for over 6 years, the Judge asserted that the Plaintiff’s testimonial deficiencies could not be excused by a lack of schooling. Hence, the Plaintiff’s case was dismissed for failing to discharge his evidentiary burden.

The Plaintiff’s contributory negligence was assessed at 20%. The Judge found that the platform ladder was less than 1 metre tall and thus, the ascending and descending of the platform ladder was not considered dangerous. The Judge took into account that the Plaintiff was a senior window installation worker with 1 year of prior experience and the accident occurred on his fifth day of work at this particular construction site, so the Plaintiff had sufficient time to familiarise himself with the environment and the equipment provided by the Defendant.

Furthermore, the Judge deduced that the Plaintiff had ascended the platform twice and descended once without experiencing any shaking of the platform. It only shook as he placed his left foot on the first step during his descent, causing him to lose balance and fall. The Plaintiff was not holding anything in his hands while descending. Even if the platform had no guardrails for the Plaintiff to hold onto, the Judge ruled that this did not make the system of work unsafe. Going along with the Witness Statement of Plaintiff’s colleague that the platform was dilapidated, the Plaintiff had all the more reason to check its stability before climbing it.

Comments

For an unwitnessed accident, the Court will take into account the circumstantial evidence before and after the accident from various witnesses and documents to ascertain the truthfulness of the Plaintiff’s own account of the accident. Where gaps and holes emerge from such an account during examination-in-chief and especially cross-examination, the account will lose credibility in the eyes of the trial Judge. The signing of the Plaintiff’s written statement shortly after the accident proved to be a vital piece of evidence in favour of the Defendant. As the Plaintiff’s version of events changed from inadvertent mis-stepping to the shaking platform, the Plaintiff’s later recount was found to be unreliable. This is because contemporaneous evidence benefits from the Plaintiff and other witnesses’ memory being fresh and intact. Where insurers find the Plaintiff’s cause of action suspicious, it is also worth looking into the contemporaneous medical notes and A&E records, which may contain the Plaintiff’s description of the accident.

Finally, the Defendant was successful in reducing the Plaintiff’s pre-trial loss of earnings entitlement, if liability had been found, by adducing Facebook posts by the printing company of the Plaintiff’s wife, which showed the Plaintiff walking unaided and operating a printing machine. This evidence helped to establish an earlier recovery date when the Plaintiff could return to his original work. This case serves as a reminder that evidence from various sources can be adduced in Court when defending claims.