KO SIU YEUNG v. KERRY DISTRIBUTION (HONG KONG) LTD

HCPI 412/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 412 OF 2003

____________

____________

_______________

J U D G M E N T

_______________

1.  The plaintiff was employed by the defendant, a transportation company, as a delivery worker.  He claims damages for personal injuries suffered in two accidents, one on 7 March 2002, and the other on 23 March 2002.  In brief, his case is that, negligently or in breach of contract of employment, the defendant required him to lift goods which were too many and too heavy, and this caused his injuries.

2.  The defendant denies liability and pleads contributory negligence in respect of both accidents, and in the alternative, relies on a written settlement agreement dated 19 December 2002 as full and final settlement of the claim.  In reply the plaintiff pleads that the settlement agreement was void or voidable and unenforceable.

The first accident

3.  The plaintiff pleads that at about 10 a.m. on 7 March 2002, he was instructed to deliver hundreds of heavy boxes of cigarettes to a warehouse at Yuen Long.  Whilst lifting one of the boxes from the goods vehicle, he suffered injury to his neck and right shoulder.

4.  He claims that the accident and injury were caused by the defendant’s negligence or breach of contract of employment.  In respect of the latter, he pleads implied terms that the defendant would take reasonable care for his safety, not expose him to a known risk of injury, and provide him with safe equipment, a competent staff of men, and a safe system of work.  As to particulars of negligence and breach of contract he pleads that the defendant failed to provide sufficient staff, failed to maintain the workload at a reasonable level so as to prevent the plaintiff from being overloaded, exposed him to a risk of injury of which the defendant knew or ought to have known, failed to take reasonable care for his safety, and failed to provide a safe system of work.  He also relies on res ipsa loquitur.

5.  The defendant admits that the plaintiff was instructed to deliver cartons of cigarettes to premises at Yuen Long, but denies that they were heavy.  The defendant denies liability and pleads contributory negligence in that the plaintiff failed, if he was overloaded which is not admitted, to request assistance of other workers; failed to look after his own safety and exposed himself to a known risk of injury.

The second accident

6.  This is said to have happened on 23 March 2002, after the plaintiff had been on sick leave and returned to work on 18 March 2002.  The plaintiff pleads that he was instructed to carry and deliver about 80 buckets of frozen chicken to To Kwa Wan, and that in the course of delivering same, the injuries suffered in the earlier accident were aggravated.

7.  The particulars of negligence and breach of contract pleaded are the same, and in addition it is said that the defendant was a fortiori negligent in the light of the earlier accident, the defendant’s knowledge of it, and the plaintiff’s subsequent requests for more staff to do the delivery work, and lighter work for himself.

8.  The defendant admits that the plaintiff had sick leave from 7 to 17 March 2002, and that he had to deliver frozen chicken on 23 March 2002, along with another worker.  Again liability is denied, and contributory negligence pleaded on the same basis as before. 

9.  By way of reply the plaintiff pleads that before the first accident he asked for assistance, but to no avail.  He denies that any worker, other than the driver, was there to assist at the second accident, and that he repeatedly requested assistance before that accident, but to no avail.

The Agreement

10.  The defendant pleads that all or any claims by the plaintiff were merged in, or extinguished by, the plaintiff’s acceptance of $269,442,67 from the defendant and its insurers, Jerneh Insurance (HK) Ltd under an agreement dated 19 December 2002 and that the plaintiff is barred from issuing the proceedings by virtue of Clause 1 of the Agreement.

11.  The plaintiff pleads in reply that the Agreement is void or voidable because of :

(1) No or no sufficient consideration;

(2) Misrepresentation; and

(3) Unconscionable bargain.

12.  This is denied by the defendant, by way of rejoinder.

13.  The Agreement itself reads (in translation) :

“Agreement

Parties :

1. Ko Siu Yeung, holder of Hong Kong Identity Card No. H450415(3), of Flat D, 14th Floor, Kwai Fung House, 11 Ping Lai Path, Kwai Chung, New Territories, Hong Kong (hereinafter called “The Injured Worker”);

2. Kerry Distribution (Hong Kong) Limited, whose registered office is situate at 8th Floor, Kerry Cargo Centre, 55 Wing Kei Road, Kwai Chung, New Territories, Hong Kong (hereinafter called “Kerry”);

3. Jerneh Insurance (HK) Ltd whose registered office is situate at Rooms 1403-5, 14th Floor, China Resources Building, 26 Harbour Road, Wanchai, Hong Kong.

Whereas :

(1) On 7 March 2002, the Injured Worker was an employee of Kerry.

(2) On 7 March 2002, the Injured Worker suffered injuries at work on Ground Floor, Lee Kwan Building, 41 On Lok Road, Yuen Long (hereinafter called “The Accident”).  Kerry had already taken out an insurance policy in respect of the Employees’ Compensation Claim and the insurance policy no. 02DL25079EC;

(3) After the Accident, in pursuance of the Employees’ Compensation Ordinance (Cap. 282) (hereinafter called “the Ordinance”), the Injured Worker claimed against he employer for damages sustained as a result of the Accident;

(4) The Injured Worker fully understands that pursuant to the Ordinance and (if there is negligence on the part of the employer) under common law, he may claim damages.  Also, he understands that within 2 years from the date of injury, he should initiate the Application for Employees’ Compensation and within 3 years, he should initiate his action for damages for negligence (under common law).  Otherwise, the Injured Worker will lose his right to claim for damages.  The Injured Worker also understands that the compensation awarded under the Ordinance shall be deducted from the damages for negligence (if any).  The Injured Worker will not be awarded with double compensation.

(5) In accordance with the Ordinance, the Injured Worker has from the date of injury up to present received a sum of HK$32,886.00 being wages of the sick leave period granted as a result of the work injury from the employer.

IT IS AGREED THAT :

1. On the condition that no admission on liability is made, Kerry and the insurance company agree to pay the Injured Worker and the Injured Worker also agrees to accept a total sum of HK$269,442.67 (hereinafter called “the Settlement Sum”) for the full and final settlement of the accident injury.  Upon receipt of the said sum, the Injured Worker also agrees to fully and permanently cancel and waive all his right to claim for his accident injury against Kerry and/ or the insurance company in pursuance of either the Ordinance or the common law.  That is to say all of the claims for damages arising from the accident injury against any parties be cancelled and fully waived upon the payment of the Settlement Sum by Kerry and/or the insurance company to the Injured Worker.  The Injured Worker will not make any other or further claim.

2. The aforesaid settlement sum of HK$269,442.67 is subject to the deduction of the sum ofHK$32,886 being the wages for sick leave period granted as a result of the accident injury.  The balance receivable by the Injured Worker shall be HK$236,556.67.  The said sum is inclusive of medical expenses and all other compensable expenses under the Ordinance and common law which the insurance company shall pay within 10 days after the Injured Worker’s signing of this agreement.

3. The Injured Worker further agrees that the settlement sum and condition recorded in this agreement are confidential and undertakes to keep it confidential and not to disclose to any third party of any information of this settlement.

4. The Injured Worker declares that he understands Chinese and the content of this agreement.”

Liability

14.  The issues on liability are whether, in the circumstances of the first and/or the second accident, the plaintiff was required to use an unsafe system of work; did the defendant fail to provide a sufficient staff or men, and maintain the plaintiff’s workload at a reasonable level?  Sub-issues are whether there was an inherent risk of harm and whether the plaintiff asked for assistance, and if so whether the defendant was at fault in failing to provide it.  There is also the issue of causation; did the work undertaken, as described by the plaintiff, cause the accident?  Finally, there is the question of whether the claims have been extinguished by the plaintiff’s acceptance of compensation under the Agreement, or whether the Agreement is void or voidable for the reasons pleaded. 

Evidence on the first accident

15.  Evidence on this comes from the plaintiff himself, who adopted two statements as evidence, and the driver, Mr Luk Yim Wah who gives evidence on behalf of the defendant.  In addition there is a statement from the plaintiff’s supervisor, Mr Wong Kin Wai, in respect of whom the plaintiff gave hearsay notice.  The defendant’s distribution officer, Ms Ip, was called to produce a delivery note which showed that the plaintiff and the driver delivered 124 cartons of cigarettes to the Yuen Long warehouse on 7 March 2002.

16.  There seems to be no real dispute that the plaintiff and the driver together loaded the delivery vehicle, which was an 8½ ton van with a lifting platform, by moving the cartons from the platform, where they been placed on pallets by a fork lift truck, and stacking them inside.  The cartons measured 17.5 x 22.5 x 10 inches (one was produced in court) and they had to be stacked standing vertically, on the 10 inch side.  The van had to wait in line with other vans for loading, and then had to be driven to Yuen Long and off-loaded.  There, the driver moved the cartons out to the platform, and the plaintiff had to lift them down one by one on to a trolley which would take 5 cartons stacked horizontally, i.e. rotated through 90 degrees, from the position in which they were stacked in the van.  The plaintiff then had to wheel the trolley into the warehouse and stack the cartons horizontally in stacks of eight. 

17.  In his first statement, the plaintiff stated the carton size as 24 x 24 x 6 inches, and the weight as 20 kilograms.  However he had to change the weight, in oral evidence, to the actual weight of 13.4 kilograms.  He also said that the load was 200 cartons, as against the recorded figure of 124 but later had to concede that his figure had been a guess.  He said that after he had moved about 100 cartons, as he was lifting one carton down, he felt pain in the neck and shoulder.  This figure was later revised to about 75 or 80 cartons, i.e. 15 or 16 trolley loads.  Originally he said that he had to stack each carton manually in the warehouse but later conceded that he could simply tip the trolley and slide off the stack of 5 cartons, though he then had to lay the other 3 on top to make a stack of 8.

18.  There was a dispute as to how the plaintiff lifted the individual cartons down.  The plaintiff said that the driver placed the carton vertically on the platform; he then had to lift it, turn it through 90 degrees and lower it to the trolley.  The driver said that he brought each carton out from the interior and pushed it over to lie horizontally on the platform, so that all the plaintiff had to do was lift the carton down on to the trolley. 

19.  There was a dispute over the amount of work which the plaintiff had had to undertake before the accident.  He said that there was a peak in the deliveries at the Chinese New Year and insisted that by 7 March the delivery loads were still high.  Mr Luk, however, said that the loads were high before the New Year but then tailed off. 

20.  There was also a dispute as to whether the plaintiff had asked for more manpower before the first accident.  In fact, although the plaintiff said that he had asked Mr Wong to put  on more men to cope with the heavy workload, there was nothing in Mr Wong’s statement to support this; probably because in the beginning, there was no pleading of a request prior to the first accident. 

Evidence on the second accident

21.  It is not in dispute that the plaintiff was on sick leave from 7to 17 March 2002.  He returned to work on 18 March.  He says that he was not fully recovered, but he had no doctor’s certificate to this effect, and he was put back on normal duty.  There is nothing in Mr Wong’s statement to support the plaintiff’s allegation that he asked for more help or lighter duty; what he said was that the company did not instruct this, and in any event, the company only put on one driver and one delivery man per van, and there were no lighter duties and no more men available to help.

22.  On 23 March the plaintiff had to shift trays or buckets of frozen chicken, weighing.  He worked with a driver, Mr Chan.  Again, there is no evidence from this person but there is a statement in respect of which a hearsay notice was given.

23.  The plaintiff described the work in this way.  He and the driver had to shift about 14 trolleys, each holding a stack of 5-6 buckets of frozen chicken, down by lift from the kitchen of the building from where they had to collect them, and push them to the refrigerated van on the ground floor.  There, he had to lift the buckets one by one to make stacks of three on the loading platform at ground level.  When the platform was loaded, it was lifted up and then he and the driver then slid the stacks of three buckets inside the refrigerated compartment of the van, where he had to re-stack the buckets in stacks of six.

24.  The refrigerated van was then driven to the Hong Kong Stadium where the buckets were transferred to another refrigerated vehicles, by sliding the stacks between the two adjacent vehicle platforms.  This had to be done, on that day, in heavy rain, and between the two cold compartments; the plaintiff complains that he was wet through and chilled while doing this work.

25.  He says that when the work was over he went to sit in the van and then felt severe pain in the right side of his body, particularly the arm and shoulder.  The van was driven back to base, and he went to the office where he was told to go and see a doctor, which he did.  Later, he says, his shoulder and arm went black.

26.  It appears that the individual buckets weighed about 23 kilograms.  It was suggested to the plaintiff that a stack of four trays could easily be shifted from the trolley on to the van platform at ground level by tipping the trolley and sliding the stack off it on to the platform, as described by Mr Chan, the absent witness and shown in an appended photograph, instead of being lifted individually, but he did not accept this. 

Evaluation

27.  The plaintiff was a poor witness.  His whole description of the work he had to do was obviously exaggerated.  Further, there were various discrepancies between what he said in evidence and what he told the medical advisers and experts.  In this connection, there is simply no medical evidence that his arm and shoulder went black.  There were also discrepancies in his evidence, given in connection with the Agreement, about his meeting in August 2002 with Mr Lee and Ms Wong of the defendant, and his evidence about the circumstances in which he came to know of Messrs Chong, So & Co, solicitors.

28.  The plaintiff had to accept that the cigarette cartons weighed only 13.4 and not 20 kilograms, and that he did not suffer pain after moving as many as 100 of them.  He also had to resile from his original story of having had to lift all the cartons individually when stacking them in the warehouse after delivery.  The number of cartons in the delivery was obviously incorrect; there is no reason to disbelieve the defendant’s computer record that it was 126 and not 200 or thereabouts. 

29.  As to the excessive amount of work which he says he had to do before the date of the first accident, there is really nothing to support this and it is much more likely any increase in deliveries before the New Year holidays would tail off thereafter.  In any event the case is not brought on the basis of an injury having been caused by excessive loading over a long period. 

30.  Counsel for the plaintiff attempts to pray in aid the plaintiff’s low level of education and poor intellect in aid of his credibility.  Low education level, in the context of the Mainland and indeed many other countries often has more to do with bad luck than lack of intellect, and it has nothing whatsoever to do with truthfulness. 

31.  By contrast Mr Luk seemed a straightforward and credible witness, and where there is a conflict, on what happened on 7 March, I prefer his evidence. 

32.  I do not believe the plaintiff’s account of how he lifted the cartons from the platform to the trolley.  It makes sense to lay the individual carton flat, as Mr Luk said he did.  Miss Cheung made strenuous efforts to suggest that tipping the carton might have been forbidden for fear of damaging its contents but one only needs to consider that the cigarettes are packed tightly in the carton, which has to be laid flat on the trolley and in the warehouse in any event, to know that there is nothing in this.  People will do things the easy way when they can; tipping the carton to lay it flat was the easy way.  While turning the carton in mid-air might cause unnecessary strain, there could be no excessive strain for a normal man in lifting a 13.4 kilogram carton down from a more or less waist high platform on to a trolley on the ground, or another carton or cartons on the trolley.  Nor would doing it repeatedly cause excessive strain. 

33.  There was nothing inherently unsafe in the job.  I do not believe that the plaintiff asked for others to be detailed to help him before 7March; that is obviously an afterthought, and in any event, if he had asked, there would have been no duty on the defendant to comply because the work was not excessive. 

34.  As to the second accident, again I cannot see any inherent risk.  As I have said, people will do things the easy way if they can.  The easy way to shift the stack of buckets from trolley to platform is to tip the trolley and slide the stack.  There is no need to lift the individual buckets and I do not believe that the plaintiff would do that.  As to the other action of moving the stack into the refrigerated compartment, and then out of it later and on to another platform, there is no difficulty in this, because plastic boxes of the sort shown in the photographs will slide easily on a steel floor. 

35.  If the plaintiff was not fit to work, it is difficult to see why he went back.  He had no medical certificate that he could not work normally, so there would be nothing to alert the defendant that he should not do so.  I do not believe he asked Mr Wong for help, because it is pretty clear from the evidence of Mr Yuk that if Mr Wong was asked for help, and he thought it was necessary and he could provide it, he would do so.  In fact it appears from the statement that no help could be provided. 

36.  As Mr Sakhrani points out, it is trite that the employer’s duty is not absolute; it is to take all reasonable care to avoid risk to his servants.  Where there is an inherent risk of injury, as there must necessarily be in a job which involves moving heavy, or fairly heavy objects, the duty is not to remove the risk but to take reasonable care to carry out the risk in a reasonably safe way; see Wong Wai Ming v Hospital Authority [2001] 3 HKLRD 209.  In this case I cannot see that the plaintiff has proved any failure to take such reasonable care.  The claim falls to be dismissed on that ground alone.

Causation

37.  The plaintiff’s expert, Dr Patrick Wong Kwok Shing gives his opinion that the plaintiff suffered a sprain injury to his neck and right shoulder as a result of the first injury.  There seems to be no mention in his report of any second accident or injury.

38.  The defendant’s expert, Dr Chun Siu Yeung, refers to cervical spondylosis having been found on X-ray on 7 March 2002.  He says that there may have been a minor sprain of the right shoulder on 23 March 2002. 

39.  Dr Chun says that individuals with cervical spondylosis can have intermittent neck pain.  The incidence of cervical pain is 7-9% in the adult population.  Dr Chun says that occurrence of neck symptoms may be perceived to be associated with an incident at work, which may lead to an injury claim.  This scenario is common all over the world and the possibility cannot be excluded in this case.

40.  If the plaintiff only had to lift boxes down from the platform to the trolley, it is impossible to see how his neck and shoulder rather than his lower back would be involved.  It is therefore impossible to be satisfied of the causal link between the lifting of the carton and the neck pain. 

Quantum

41.  I do not see that the plaintiff can establish liability.  In case I am wrong, I will consider quantum briefly, and will not go into any detailed discussion of it.

42.  The plaintiff’s expert, who saw him in January 2003, found that the plaintiff suffered a sprained right shoulder.  He was referred for physiotherapy but defaulted after one session.  On examination the plaintiff was complaining of neck pain, right arm weakness and numbness and inability to lift more than 10-20 pounds.  There was mild muscle spasm at the right neck and shoulder, no muscle wasting, but some restriction of shoulder movement.  There was reduced right hand grip.  Dr Wong thought the sick leave period was reasonable but the plaintiff could not go back to his original work; he could do light work as a cleaner or machine operator.

43.  The defendant’s expert saw the plaintiff in October 2003.  He found objective signs normal.  The numbness complained of could not be explained.  The handgrip loss suggested submaximal effort.  There was no wasting of the shoulder girdle and arm to suggest lack of used because of weakness.  The active range of shoulder movement had improved against what Dr Wong had reported, but the latter had not specified if the range was active or passive.  If there is no neurological weakness the active and passive ranges should be the same.  Dr Chun thought the plaintiff was exaggerating, and that he could go back to work as a delivery man, with minor inconvenience. 

44.  The doctors later performed a joint examination but apparently maintained their original views on the level of disability and the ability or otherwise to return to work.

45.  I have not heard oral evidence from the experts but given the plaintiff’s tendency to exaggeration referred to above, I prefer Dr Chun’s opinion.  I am not therefore satisfied that the plaintiff could not go back to work as a delivery man once his sick leave period had finished.  The doctors agreed that the sick leave period was reasonable, i.e. to September 2002.  The plaintiff was paid in full up to this time.

46.  I would therefore accept the PSLA figure suggested by Mr Sakhrani, i.e. $75,000.  There would be six months’ loss of earnings and MPF contributions.  There is a dispute as to overtime; the plaintiff’s figure total figure is $57,553 and the defendant’s $42,138.  On a finding that the plaintiff could return to the same work, there would be no future loss or loss of earning capacity.  There is a dispute over special damages, and in particular for travelling expenses and the expenses of acupuncture.  The plaintiff claims a total of $18,582 and the defendant says that a figure of $3,000 is appropriate.  Even accepting the higher figures which the plaintiff puts forward the total damages would be less than the employee’s compensation received.

The Agreement

47.  In case I am wrong it is necessary to look at the evidence relating to the Agreement.  In brief, the plaintiff has agreed to accept his employee’s compensation pay-out, plus a relatively small amount for medical expenses, in full and final settlement.  He signed for that.  Now he seeks to avoid the Agreement on the ground of no or no sufficient consideration, misrepresentation or unconscionable bargain. 

48.  The pleaded basis for no or no sufficient consideration is that the defendant was liable to pay employee’s compensation, as assessed by the Board, of $259,442.67 plus medical expenses in any event.

49.  The pleading on misrepresentation is that Ms Teresa Lun, who was the servant or agent of the defendant or its insurers, told the plaintiff that the defendant was only liable to for $269,442.67, i.e. assessed compensation plus medical expenses, in any event; if the plaintiff refused to sign the Agreement, he would wait a long time for that sum; and if he signed, he would get the money in ten days.

50.  As to unconscionable bargain the plaintiff relies on the same pleaded facts, and says that he was not advised to take independent legal advice before he signed; the defendant failed or refused to explain fully the true terms, effect or nature of the Settlement Agreement; and the defendant took advantage of his position as being poor and ignorant.

51.  Ms Lun operated a claims management service.  She was acting on behalf of the insurer.  She contacted the plaintiff in November 2002, and organised physiotherapy for him, to be paid for by his employer.  According to the plaintiff, she was friendly and helpful and he came to trust her.

52.  As appears in the plaintiff’s first witness statement, when he went up to Ms Lun’s office to sign the Agreement – having been told the figure, and being in need of funds – she told him that the employer was only liable to pay the assessed compensation, and it was good of them to pay the extra $10,000 for which she had fought.  If the plaintiff would sign, he would get the money in ten days; if not he would have to wait a long time and the employer might appeal against the assessment.  He was led into believing that the purpose of the document was to reflect an agreement that the employer would pay quickly, and not appeal, if he would accept the figure, including the extra $10,000 for medical expenses.  He told Ms Lun that he could not understand the language of the document, but she told him not to worry about it; he got the impression that he should not be fussy, after she had fought for his extra money.

53.  The plaintiff says that Ms Lun did not tell him that he had any other possible claim; she did not read any part of the document to him; and she told him to sign quickly because she wanted to go of duty.  He therefore just glanced through the document, and signed. 

54.  Ms Lun also made a statement, which she adopted as evidence.  In it she said that when she first saw the plaintiff, he had told her various things, including that the employer was playing tricks by lodging an objection to the original assessment; and that he thought his employers would not pay compensation, so he had already consulted lawyers about a negligence claim.  He had also been approached by “no win no fee” recovery agents.

55.  The plaintiff came to Ms Lun’s office on 18 December 2002, when she let him read a draft of the Agreement, the fair copy not yet being ready.  At this stage she explained that it was a global settlement, and asked him if he had signed any agreement with the “no win, no fee” agents; which he said he had not, but he would if he did not get his money by 24 December. 

56.  On 19 December, according to Ms Lun, the plaintiff read the agreement, and then she read it over to him.  She explained that it was a full and final settlement, and he said he understood.

57.  In his second witness statement the plaintiff made various comments on what Ms Lun had written.  He specifically denied having told her, at their first meeting, anything of the sort alleged in her paragraphs 5 (d) and (e), i.e. about having consulted a lawyer, and having been approached by “no win, no fee” agents, and he confirmed what he had said in his first statement about what happened when he signed the Agreement.

58.  In cross-examination, counsel for the defendant put to the plaintiff that he had consulted solicitors, Chong, So & Co., and the plaintiff agreed that he had telephoned someone at that firm, to discuss the appeal by his employer, and whether it was possible that he would not receive any money and the like.  Mr Sakhrani then applied successfully to put in evidence a letter signed by the plaintiff, and dated 30 October 2002, to the medical records office at Princess Margaret Hospital, confirming that he instructed the solicitors in pursuing a claim of damages in respect of his accident at work on 7 March 2002, and authorising the release of his medical records to them for that purpose.

59.  The plaintiff had to admit, thereafter, that he had consulted solicitors, and had engaged them to claim damages for negligence.  He insisted however that when he signed the Agreement, there had been no mention of negligence, only employee’s compensation.  He agreed, however, that he knew the meaning of the characters appear in the Agreement and are taken as meaning “common law negligence damages”, and that he had instructed the solicitors to claim those.

60.  It is obvious, therefore, that at the time of signing the Agreement, the plaintiff well knew that he had a possible common law claim; and it is also more probable than not that Ms Lun’s evidence that she was told at the outset that he had consulted solicitors is true, and that the plaintiff’s denial of having said that, in the second witness statement, is untrue. 

61.  Now, it may be that the plaintiff had not consulted the solicitors further, as he says, but given that he knew that he had a common law claim, he cannot now say that he was kept in ignorance of it, when he signed the Agreement.  It is also more probable than not that he did ask Ms Lun whether he could claim anything else, as she says, and she told him that it was a global settlement.  She was a straightforward witness, and stood up well to cross-examination.  Where there is a conflict, I prefer her evidence.

62.  It follows that there is nothing in the allegation of misrepresentation.  There was consideration, even if it was only an extra $10,000 without the need for proof, and a promise not to contest the compensation assessment.  I do not accept that Ms Lun took advantage of the plaintiff’s poverty and ignorance; indeed, he cannot be seen as ignorant, for the reasons given above.

Result

63.  The plaintiff’s claims are dismissed, with costs (nisi) to the defendant to be taxed if not agreed.  The plaintiff’s own costs are to be taxed according to the Legal Aid Regulations.