Can you question a witness’s evidence by adducing contradictory evidence he gave in other personal injury proceedings?
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  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.
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.
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