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Personal Injury
Crafting a Robust Defence in Personal Injury Cases: Key Steps for Raising Contributory Negligence and Challenging The Plaintiff’s Loss of Income
1. CHEUNG KING TING v. YAU SHUK KUEN AND ANOTHER [2024] HKDC 2100; DCPI 2526/2023.
2. LEE TAK CHUNG JOE v. YEUNG LUEN trading as 足福中藥古法薰腳專門店 [2025] HKDC 177; DCPI 3231/2021
There are two recent cases, on liability and quantum respectively, which can shed light on the judicial approach in defending personal injury cases. It is worth to review the same.
The first cited case is a simple car accident case. On 7 November 2023, the plaintiff obtained an interlocutory default judgment against the defendants, with damages to be assessed, due to the defendants’ failure to file a notice of intention to defend. The plaintiff filed a Revised Statement of Damages dated 19 August 2024, and the defendants responded with an Answer to the Revised Statement of Damages dated 8 November 2024, alleging that the plaintiff was contributorily negligent in causing the accident. The question is whether a defendant can raise the issue of contributory negligence on the part of the plaintiff despite an interlocutory judgment on liability having been entered by default.
The court ruled in favor of the plaintiff, holding that the defendants’ late attempt to raise contributory negligence was improper and not permissible under the circumstances. Deputy District Judge Alfred Cheng agreed with the plaintiff that it is the usual case that a defendant will apply to set aside a default judgment against him, if the defendant wishes to argue contributory negligence. The defendants should not be allowed to raise the issue of contributory negligence as late as in their Answer to the Revised Statement of Damages in a case under the personal injuries list.
For the second cited case, the plaintiff visited the defendant’s shop and received a 45-minute foot steam treatment. During the treatment, the plaintiff’s feet were scalded and harmed by the hot steam. As a result of the accident, the plaintiff suffered from bilateral foot blisters accompanied by pain and numbness. The plaintiff claimed for, among other things, $630,000 for pre-trial loss of earnings. The court had to decide whether it was believable that the plaintiff had been engaged in the field of employment and in the amount as alleged.
No sum was awarded under the head of pre-trial loss of earnings as the court was not satisfied that the plaintiff was a credible and honest witness about his pre-accident occupation and earnings. The court placed much emphasis on the lack of contemporaneous documents to prove the plaintiff’s alleged employment status and income level. For example, daily attendance records could have been obtained from the well-established system under the Construction Industry Council. There were no payment records to third parties for the alleged sub-contracted work. No tender documents for the alleged fire and building projects. Even if the records were lost, bank statements, IRD and MPF documents could be retrieved and obtained by application with insignificant fees.
Comments
The key takeaways for both cases are:
1. In some straight-forward traffic accident cases, whilst the defendant’s negligence is clear, there may be elements of contributory negligence on the part of the plaintiff, say in failing to wear a safety belt, failing to look out for approaching traffic when crossing the road, etc. In such cases, it is preferable to file a Defence raising the issue of contributory negligence, so that the Court and the parties are aware that contributory negligence is a live issue to be addressed.
2. Admission of liability may save costs for the defendants. However, the gain from arguing contributory negligence of the plaintiff may sometimes outweigh the benefits of saving costs.
3. To test the credibility of witnesses, contemporaneous written documents and the documents which came into existence before the problems in question emerged are of the greatest importance. In determining a witness’s account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened or the apparent logic of the events. Importance should also be attached to the consistency of the witness’s evidence with undisputed or indisputable evidence, and the internal consistency of the witness’s evidence. This shall apply to both the plaintiff and the defendant’s witnesses.
4. In making the appropriate level of sanctioned payments, the defendant shall consider the reliability of the parties’ claims. In terms of quantum, the defendant should take pro-active steps to seek a variety of supporting documents to assess or refute the plaintiff’s claims. Key documents to request include tax records, MPF records, bank statements, payroll records, employment contracts, daily attendance records, declarations to the Housing Authority (if the plaintiff lives in public housing), and any correspondence or collaborative evidence related to the plaintiff’s work. The absence of such contemporaneous evidence can significantly weaken the plaintiff’s assertions regarding the plaintiff’s employment status and income level.