The Official Journal of The Law Society of Hong Kong – (Jan 2020)

【TORT 】

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Timely Reminder :

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

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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.

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

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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.

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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.

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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:

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

Issue 2. Illegible Photographs in the AIR

Issue 3. Key Witnesses Not Called
Issue 4. Discrepancies in Sick Leave Certificates

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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.

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