Can you question a witness’s evidence by adducing contradictory evidence he gave in other personal injury proceedings?
Introduction
It is a well-established principle that one cannot impeach a witness’s
credibility by adducing evidence of discreditable acts unconnected with his
testimony. However, in the context of a personal injury proceeding, can one
question the witness based on inconsistency between evidence he gave in other
personal injury proceedings? If the answer is “yes”, this may be helpful in
defending a personal injury claim against an “accident prone” or “habitual”
claimant who has been involved in multiple personal injury proceedings.
In Mohammad
Wajed v Cheung Pik Chu Ruby and Others [2022] HKDC 574, the District
Court (the “Court”) held that it has
the power to grant the defendants therein access to court documents in other
personal injury proceedings in which the plaintiff was involved. The factual
cases given by the plaintiff in those other proceedings, including his medical
history and previous injury record, have direct bearing on some of the issues
fall for determination by the Court. Hence, provided that the parties are given
opportunities to study them and to ask questions arising out of them, the Court
is entitled to take into account the court files in other proceedings in
considering the present case.
Background
The plaintiff’s claim in the present case
was that he tripped and fell on the staircase of On On Building (the “Building”). He tripped over some
sandbags and renovation materials scattered at the top of the staircase next to
Flat
B, 5/F of the Building (“Flat 5B”).
He claimed that he fell down about 9 steps of the staircase to the landing
between the 2 floors, thereby sustaining personal injuries (the “Accident”). On this basis, he claimed
against all the defendants for common law negligence and breach of occupiers’ duty to
take care under the Occupiers Liability Ordinance (Cap 314) (the “OLO”).
The defendants include, among others, the
registered owner of Flat 5B and the decoration/renovation company. They have
generally denied liability and blamed it on the plaintiff’s own negligence.
Suspicious features in the plaintiff’s case
According to the plaintiff’s statement of
claim, in the evening of the Accident, he went to meet with his friend Mr
Zulfiqar Ali (“Ali”) who was the
tenant of Flat 5A of the Building. Therefore, he claimed that he was a visitor
to the Building within the meaning of the OLO. This gave the impression that
the plaintiff was in the capacity of a visitor of the Building rather than as
an occupier himself under the definition of OLO.
However, as the plaintiff’s witness
statement and the documentary evidence later revealed, in fact the plaintiff
was the tenant
of Room 1 (which is a sub-divided unit) of Flat 5A, which seemed to contradict
what he had stated earlier in the statement of claim.
Besides, when being challenged on the
inconsistencies and problems of his case by the defence’s counsel, the plaintiff
resorted to saying that he could not remember or gave equivocal answers. At
times, he became aggressive and antagonistic and lost his temper. When being
cornered in his evidence, he would resort to explain his bad memories or bad temper
were caused by his diabetes and the medication. However, when it came to the
details of the Accident, the plaintiff seemed to have no difficulty in remembering
them at all. The Court found, those evidence sounds too rehearsed and too
perfect to be true and found the plaintiff as an incredible and unreliable
witness.
Previous personal injury proceedings
Coupled with other inconsistencies and
inherent improbabilities of the plaintiff’s case, the Court became highly
suspicious towards the plaintiff and looked into his background. The Court
managed to find that the plaintiff has been involved with at least 7 other set
of legal proceedings (“Other Proceedings”)
since he returned from the UK to live in Hong Kong permanently in 2008. 6 of
those cases was in his capacity as a claimant or plaintiff in an employees’
compensation or a personal injury case. They involved 4 different accidents at
work, most of them happened on either the first day or the first few days after
he had started working for a new employer. In each case, he was represented by
a different firm of solicitors. The last one was a civil action in which the
plaintiff was sued by an insurance company for fraudulent misrepresentation /
non-disclosures of medical insurance claims made out of the medical insurance
policies taken out by him.
The plaintiff has not disclosed the
existence of any of the above cases / accidents to his present lawyers, who were
completely kept in the dark in so far the Other Proceedings are concerned. They
also did not know what injuries he allegedly had sustained in those accidents
and whether there are any overlaps in the injuries or claims for loss of income as
those he is claiming under the present case. Hence, no discovery has been made
in relation to the documents in regards to the injuries, treatments, jobs,
income, sick leave and damages in the Other Proceedings.
Subsequently by a consent order, the Court
ordered that there be leave for copies of documents from the court files of the
Other Proceedings to be provided to the parties in the present action and
inserted into the trial bundle.
Admissibility
of evidence given in Other Proceedings
Before analysing the plaintiff’s cases in Other
Proceedings, the Court first dealt with the issue whether the statements
contained in Other Proceedings’ court files are admissible in the present
proceeding. The Court accepted
the principle that one cannot impeach a witness’s credibility by adducing
evidence of discreditable acts unconnected with his testimony. However, in the
present case, the Court considered the plaintiff’s evidence in Other
Proceedings not only relevant to the plaintiff’s credibility but also have a
direct bearing on some of the issues to be determined in the present action,
including (1) whether the alleged injures claimed by the
plaintiff were sustained in the Accident or were sustained in other accidents
claimed by him in the Other Proceedings; and (2) his pre-accident jobs and
income stated in the present case compared with the claims he made under the
Other Proceedings.
The Court further held that it has the
inherent jurisdiction to control access to documents placed in its custody in
relation to legal proceedings. It has the power to restrict as well as power to
grant access to those paper.
Concluding from the above, the Court held
that it is entitled to take into consideration the
court files in the Other Proceedings, provided that the parties are given
opportunities to study them and to ask questions arising out of them.
Inconsistencies between plaintiff’s cases in
various proceedings
The plaintiff’s
cases in Other Proceedings directly contradict some of his evidence in the
present case. For instance, in respect of the plaintiff’s ability to return to
work following the Accident, the plaintiff claimed in the present case that he
resumed work as a “security guard” after the expiration of sick leave following
the Accident (and is at present still allegedly working as a security guard). According
to the plaintiff’s own pleaded case in the Other Proceedings, he worked as a “carpenter”
in August 2016 (which job required the plaintiff to separate heavy wood/metal
bars weighing over 30 kg) and as a “hooker” /slinger at a pier in May 2019
(which job required the plaintiff to attach hooks weighing around 1 to 1.5 kg
to containers). In other words, the
plaintiff is trying to give the false impression that following the Accident,
he has only been able to work in a less physically demanding job.
The plaintiff met
with at least 9 accidents resulting in personal injuries over a span of 11 years.
The Court found that the plaintiff was not merely “accident prone” but was a “habitual
claimant” who mainly lived off sick leave payments and damages he had recovered
from various claims he made over the years. The Court concluded that the
plaintiff was a dishonest witness and dismissed all his claims.
Conclusion
The present case
demonstrate that, in the context of personal injury proceedings, the courts may
be entitled to consider plaintiff’s evidence in various personal injury
proceedings because it is likely to be useful in considering whether the
plaintiff suffered the said injury in that case or in other accidents and also
another issue on his pre-accident job and income.
In light of this
ruling, checking the plaintiff’s background is a useful strategy in defending a
personal injury claim where the victim appears to be an “injury prone” or a “habitual”
claimant. That said, this strategy involves complicated procedure and legal
issues including conducting a litigation search and determination of the admissibility
of relevant information identified. When in doubt, it is always prudent to
consult a personal injury lawyer.
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Important: The law and procedure on
this subject are very specialised and
complicated. This article is just a very general outline for reference and
cannot be relied upon as legal advice in any individual case. If any advice
or assistance is needed, please contact our solicitors. |
Published by ONC Lawyers © 2022 |