In this update, we highlight four personal injury cases which may be of particular interest to insurers and/or defendants.
In the first two cases, the court found for the defendant employers primarily because the claimants failed to report their accidents promptly. In the third case, the plaintiff's claim was dismissed because her accident was brought about by the plaintiff's own conduct in failing to use the safe access provided. The fourth case involves a child injured in an ice-skating accident where the court in finding for the claimant also issued some guidance as to what safety measures may be required for inherently hazardous sporting activities (which would be of relevance to occupiers).
- Failure to report accident fatal to claim
- The court decision of Tse Sin Yee v Wing Wah Cake Shop Ltd (DCEC 251/2008) demonstrates that the court is quite ready to find for the defendant when the plaintiff fails to promptly report the accident and there is an absence of hospital records to confirm the same.
In that case, the claimant was involved in two separate accidents. She reported the first one but not the second one. The second accident allegedly happened at the respondent's bakery shop when she was instructed to take out cakes from a storeroom at the shop where she was employed.
The respondent contended that the second accident never happened at all. In response, the claimant said that she did not inform the shop supervisor of the second accident nor give notice of the accident because of a fear of "losing her job". The hospital records made on the date of the second accident revealed that the claimant did not complain to the hospital about an accident. The accident was only "reported" when the respondent's human resources department requested verification of the complaint one year after the second accident.
The court held that the claimant had failed to prove the accident arose in and out of the course of her work and so her claim failed.
- In Majid Abdul v. Incorporated Trustees of The Islamic Community Fund of Hong Kong  HKEC 826, the claimant sought employees' compensation for a work-related accident but he only reported the occurrence of the accident three days after he was fired. He was a cemetery worker and allegedly sustained an injury when the mud wall of a grave collapsed on him.
The presiding judge found there was no "accident" and dismissed the claim on the basis that "...the Applicant's account is wholly unbelievable and no such accident took place as alleged" because he only attended hospital 11 days after the accident despite alleging he was in a lot of pain. The judge also took into account that the claimant continued to work for four days after the alleged accident; that the medical records showed no signs of injury; and as a matter of timing, the accident could not have occurred. Costs were awarded on an indemnity basis with 10% interest on costs above the judgment rate.
- Plaintiff's claim dismissed for not using safe access provided
In Limbu Jas Maya v. HK Scafframe System Ltd  HKEC 766, the plaintiff allegedly injured herself when she walked on scaffold parts scattered on the ground for which she was responsible to remove and tidy up.
The defendant employer did provide a safe and wide enough access to and egress from the work place even though it was not the most convenient route. The plaintiff did not use the designated access and egress but decided to take the more convenient route. In doing so, she sustained a fall which was brought about by scaffold parts scattered on the ground. She sued her employers for failing to provide adequate warning, among other allegations.
The court ruled that on the facts of the case, there was no need for the defendant to warn against the dangers of walking over the scaffold parts because there was no suggestion that such an accident had happened previously, and the workers had years of experience and could be left to decide how to carry out their work. Her action was dismissed with costs.
- Safety tips for inherently hazardous sporting activities
In Leung Sze Nok v Tsuen Wan Properties Limited t/a Riviera Ice Chalet (DCPI 1470/2007), the defendant was found liable despite there being no direct evidence that the accident occurred. The defendant was the occupier of the ice rink and the operator of the ice-skating school. The plaintiff was a nine year old girl taking ice-skating lessons when she sustained a bad fall resulting in a depressed skull fracture. The plaintiff was unable to give details as to how she was injured and no one saw the accident. She was simply found crying with her face down the ice rink.
Notwithstanding the absence of factual evidence, the judge accepted that on a balance of probabilities, the fracture was more likely to have resulted from the plaintiff being hit by the instructor's raised skate in the air after considering the shape and form of the fracture in the plaintiff's skull. The instructor was an employee of the defendant. It is relevant to note that the defence of volenti non fit injuria did not apply because the plaintiff was too young to look after herself.
The court found that the defendant was negligent and commented that the kind of safety measures that would be expected in such a scenario included:
"... the teacher would be expected to devote his/her full attention on the student he/she was teaching..."
"... the wearing of safety helmets in an ice skating school should be mandatory for young students"
"There should be safety equipment such as helmets, knee pads and guards to protect students from injury during lessons. There should be safety manuals distributed to all students and posted up in the School area."
The judgments in the cases of Tse Sin Yee, Majid Abdul and Limbu Jas Maya are especially encouraging in the midst of increasing claims for employment related injuries. They remind us of how the "facts" of an accident and contemporaneous evidence are of fundamental importance to defend a claim. Employers in potential proceedings are reminded of the need to keep accurate and detailed contemporaneous records of accidents, in anticipation of litigation.
Owners and occupiers of premises should take heed of the comments made in the judgment of the case of Leung Sze Nok. The standard of care required in cases where children are involved with potentially dangerous activity, such as swimming and ice skating, is always higher. As such, increased supervision, more staff and proper safety equipment may be required in certain circumstances. No doubt increased safety measures and safety equipment would have the effect of driving up operational costs.
For inquiries related to this Legal Update, please contact:
Angela Yim (email@example.com)
Dana Chu (firstname.lastname@example.org)
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