Timely Reminder : Procedural Pitfalls to Look out for in Employment-Related Personal Injuries Claims

Whilst personal injuries cases are often known to have a greater tendency to settle out of Court, practitioners should be reminded the need for thorough and hands on preparation from early on, with a view to seeing the case tried and tested in Court.

A recent High Court judgment in HCPI 523/2016 highlights certain possibly commonplace procedural issues to which practitioners should pay particular attention.

Factual Background

In brief, the plaintiff worked at the defendant’s supermarket, and hurt her back as she and a co-worker were moving a plastic box of goods from a pallet onto an empty box on a flat trolley.

After obtaining interlocutory judgment by consent in the related Employee’s Compensation Application, the plaintiff sued the defendant for negligence and/or breach of statutory duty and/or breach of contract of employment in the current proceedings.

The outcome of the case is immaterial for present purpose. What could serve as a reminder for us is that the Court identifies certain procedural issues that should have been dealt with which are perhaps commonplace in cases such as the current one:

Issue 1. Accident Investigation Report (the “AIR”) Redacted

Oftentimes, upon requests for documents, redacted versions of such documents are provided by government authorities for privacy related concerns, such as the AIR as provided by the Labour Department in the current case.

The Court notes that in cases such as the current one, unredacted version of the AIR should be obtained from the Labour Department, as the unredacted version of the AIR would contain abundant information useful to the Court.

(On privacy concerns, see also Chan Yim Wah Wallace v New World First Ferry Services Ltd HCPI 820/2013 (unreported), and s. 60B of the Personal Data (Privacy) Ordinance, Cap 486).

Issue 2. Illegible Photographs in the AIR

As with other types of litigation, illegible photographs should be identified and rectified before trial. In personal injuries cases arising out of an employment context, photographs included in the AIR as provided by the Labour Department are often black and white photocopies, sometimes not in perfectly legible conditions.

Appropriate actions should be taken early on, and way in advance of trial, since it would also take time for the Labour Department to follow up upon a request for legible copies of the AIR and the photographs therein.

Issue 3. Key Witnesses Not Called

Where the AIR identified a person who could testify on the issue of liability, that person should be called as a witness, unless there are good reasons not to do so.

In the current case, the AIR identified co-workers of the plaintiff who had also suffered an injury in the same accident, or who had delivered or taken the relevant Occupational Safety and Health training, or who were on duty at the supermarket at the time of the accident. These are witnesses who could give evidence highly relevant to the issue of liability. The Court notes that it was “extraordinary” and “inexplicable” they were not called as witnesses.

Issue 4. Discrepancies in Sick Leave Certificates

Where there are significant discrepancies in sick leave certificates provided by the plaintiff which may undermine or otherwise cast doubt on the credibility of the plaintiff, discovery of the contemporaneous medical notes prepared and maintained by the Plaintiff’s treating doctors ought to be made.

In the current case, sick leave certificates that had previously been submitted to the defendant were subsequently re-submitted to the defendant, with the same having been amended by the relevant clinic or doctor to include further symptoms. The Court finds it “surprising” that none of the plaintiff nor the defendant sought discovery of the contemporaneous medical notes.

Take Away Points

This case serves as a timely reminder for all practitioners in personal injuries practice. In particular, practitioners should:

  • Always assess the quality of the documentary evidence and follow up early on
  • Identify key witnesses and obtain evidence from them, especially in cases where liability is contested
  • Be critical of discrepancies in evidence and consider appropriate actions

Solicitor, CPH Legal 

Eric Chan is a litigation solicitor qualified to practice in Hong Kong. He is experienced in commercial litigation, criminal litigation, and personal injuries claims. He has also been briefed by the Department of Justice of the HKSAR Government as a prosecutor on fiat in criminal cases.

When Mr. Chan is not in Court, he is often seen delivering talks to clients, NGOs and government bodies.