XCHRX TONG HO WING v. WONG FUK AND ANOTHER

HCPI 1369/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.1369 OF 1999

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J U D G M E N T

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1. This is an appeal from an order of Mr Acting Registrar Chan given on 20 June 2000 ordering that no expert evidence on liability shall be adduced either in written or oral form at the trial of this action. The Notice of Appeal, dated 27 June 2000, asked for this order of Mr Acting Registrar Chan to be rescinded and set aside and in place thereof it may be ordered that :-

(1) Leave be granted to the 1st and 2nd defendants to file and serve their expert report on liability, i.e. Professor Murray Mackay's report dated 12 June 2000; and

(2) costs of and occasioned by this appeal be to the 1st and 2nd defendants.

Background

2. This case arise from an accident which happened on 10 March 1998 when the plaintiff, a boy of 15 years old at the time, was crossing Fung Wan Road in Tai Po in an easterly direction, he was knocked down by a lorry driven by the 1st defendant and owned by the 2nd defendant. It is common ground that the northbound carriageway of Fung Wan Road has two lanes while the southbound carriageway has only one lane. The 1st defendant was driving the lorry on the southbound carriageway. The pavement along the northbound carriageway of Fung Wan Road has a railing all along it, however, there is a gap in this railing at the spot where the plaintiff crossed the road. It appears that this gap in the railing was deliberately created by the authorities to enable pedestrians to cross over to the other side of the road where there is a taxi stand and a bus terminus. It is also common ground that at the time a public light bus had stopped along the inner lane of the northbound carriageway, just where this gap in the railing was and that the plaintiff had crossed the road from behind this stationary public light bus. It is also common ground that the plaintiff was hit by the front off-side of the lorry driven by the 1st defendant.

3. Immediately after the accident, the 1st defendant gave a statement to the police in which he said that at the time of the accident, he was travelling in second gear at about 20 km/h. He saw the public light bus which had stopped in the inner lane on the opposite carriageway and he saw that there was no vehicle in front of his lorry on his side of the road. There was also no vehicle coming towards him on the opposite carriageway. He checked to see if there was any vehicle coming out from the junction on his left hand side and when he found no vehicle coming out from that junction, he looked ahead. It was then that he saw the plaintiff running out from the right side, about one metre in front of him, and running into the lane on which his lorry was travelling. He immediately braked but the off-side front of his vehicle had already hit the left body of the plaintiff. He also stated that he was familiar with that part of the road since he lived there. When he was asked whether he had looked to his right side to check if there were any pedestrians behind the public light bus which had stopped on the opposite carriageway, he answered that because at the time, having checked the road junction on his left side for one to two seconds, when he looked ahead he had already seen the plaintiff, and that he had no time to look to his right behind the public light bus.

4. A second eye witness to this accident is a schoolmate of the plaintiff, a girl by the name of Leung Wai Yan. She gave evidence in the magistrate's court concerning this accident. Her evidence was that at the time of the accident, she and the plaintiff had finished their lunch and was on their way back to school. That necessitated crossing Fung Wan Road. She told the court that the plaintiff had paused at the pavement along the northbound carriageway of Fung Wan Road for about one to two seconds and then had started to cross the road in between two vehicles which had stopped along the inner lane of the northbound carriageway. She said that the plaintiff's pace when he crossed the road was "slower than running but quicker than walking". The plaintiff did not stop and then she saw him hit by the lorry which came from the left side. She was unable to give any evidence as to the speed of the lorry which hit the plaintiff because she was only able to see what had happened in between the two stationary vehicles on the inner lane of the northbound carriageway.

5. There is a third eye witness to this accident by the name of Lee Cheuk Wing who was a passenger on board the lorry driven by the 1st defendant. He has given a witness statement in which he states that the lorry had stopped at traffic lights just before the accident happened. When those lights turned green, the lorry accelerated to a speed of about 10 to 20 km/h. The lorry was still travelling at a speed of about 20 km/h when suddenly a boy dashed out from between two stationary vehicles on the northbound carriageway on his right hand side. It was less than a second after this boy dashed out that the boy reached the front part of the lorry and almost at the same time the 1st defendant braked abruptly. It all happened so quickly that he was unable to say whether it was the boy who hit the front part of the lorry or that it was the lorry who hit the boy, but that there was nothing the 1st defendant could do to avoid the collision.

6. The writ was issued by the plaintiff in this case on 6 December 1999. The particulars of negligence alleged against the 1st defendant was that he had failed to maintain a proper lookout, failed to heed the presence of the plaintiff, failed to pay sufficient attention to the plaintiff crossing the road with the knowledge of the gap in the railing, failed to give sufficient consideration to the presence of the two stationary vehicles on the northbound carriage which might obscure his view of pedestrians, driving at an excessive speed in the circumstances and failing to take evasive action so as to avoid the collision. The defence which was filed on 5 January 2000 denies negligence on the part of the 1st defendant and pleads contributory negligence of the plaintiff, the particulars of which are that the plaintiff had dashed or run out in between two stationary vehicles without keeping a proper lookout for vehicular traffic or checking the traffic conditions before dashing out and that he had failed to use a nearby zebra-crossing.

The checklist review hearing

7. At the checklist review hearing before Mr Acting Registrar Chan on 20 June 2000, no expert reports on liability had been filed or served by the defendants. Only at the hearing itself did the defendants' solicitor informed the Acting Registrar that the defendants had obtained an expert report from Professor Mackay and the Acting Registrar was only told the gist of the contents of that report. The plaintiff who was not relying on any expert evidence on liability, objected to any expert evidence on liability being adduced by the defendants. After hearing the parties, the Acting Registrar made the order that no expert evidence on liability is to be adduced by either party in written or oral form at the trial of this action. It is this order that is being appealed from by the defendants.

The appeal

8. For the purpose of the appeal, a copy of Professor Mackay's report has been included in the appeal bundle. This report is dated 12 June 2000 (and therefore predates the checklist review hearing before Mr Acting Registrar Chan). I do not know why a copy of that report was not filed or shown to Mr Acting Registrar Chan at the checklist review hearing, however, I now have the benefit of seeing a full copy of that report. Since this is an appeal from an order of the master, it is by way of rehearing, and with the benefit of the entire report of Professor Mackay before me, I am in a position to decide the matter afresh.

Contents of Professor Mackay's Report

9. Professor Mackay's report consists of four pages and is divided into five sub-headings, namely, 'The Scene'; 'Analysis'; 'The Speed of the Pedestrian'; 'The Driver's Response'; and lastly, 'The Nature of the Impact'.

10. Insofar as 'The Scene' is concerned, this part of Professor Mackay's report is composed from photographs taken by the police on the day of the accident as well as a sketch drawn by the police of the scene after the accident and also from a visit to the scene by Professor Mackay on 10 March 2000 (exactly two years after the date of the accident). From all these, Professor Mackay made a scale drawing of the scene of the accident appended to his report as "Appendix 2".

11. That part of Professor Mackay's report under the heading 'Analysis' is made up firstly from his observation of traffic approaching the point of impact when he visited the scene and which he found to be travelling in the 22 to 30 km/h range. Secondly, it was made up from a mathematical formula for deceleration which is said to be based on the standard Newtonian relationships between speed, deceleration and distance contained in that equation. From this, he goes on to draw four conclusions under "Analysis" as follows :-

(a) Professor Mackay's says it must be concluded that the recorded tyre marks (of 6.4 metres as shown on the police sketch) began just before the impact with the pedestrian because the point of impact recorded by the police is immediately at the rear of the truck in its 'at rest' position.

(b) He further concludes that there is a period of about half a second built-up in the braking effort prior to the actual locking of a wheel, therefore, he draws the conclusion that the driver must have physically initiated braking at least half a second prior to impart.

(c) He further draws the conclusion that from his drawing, it is clear that the curvature of the road is not a factor in obscuring the line of vision of the 1st defendant when driving the lorry, relative to the right rear corner of the public light bus.

(d) On the basis that the lorry was travelling at 20 km/h, Professor Mackay had marked the position of the lorry at one second intervals prior to impact on the road and draws the conclusion that the 1st defendant's sight restriction of the plaintiff emerging from the rear of the public light bus would have been kept to within a two-second period. He further qualifies this conclusion by saying that even if the lorry had been travelling at 30 km/h, the position of the lorry at one-second intervals prior to impact would have been extended on his sketch but not to such an extent as to introduce any new sight restriction within the two-second period.

12. In the next part of the report under the heading "The Speed of the Pedestrian", Professor Mackay relies on statistics taken from studies on the speed, time, distance relationships for pedestrians of various ages when crossing roads. According to him, the most comprehensive of these studies was one published in 1998, compiled by one Jerry Eubanks, a Collision Reconstructionist in San Diego, California, and which has been appended to his report as "Appendix 3". From these tables and statistics, Professor Mackay states that the time taken for the plaintiff, a 15 year-old, to traverse the five metres between emerging from the rear of the public light bus up to the point of impact would have been between 1.1 seconds if he was running and 2.8 seconds if he was walking. He further concludes that based on the evidence that the plaintiff was travelling in a manner between walking and running, it would have taken him something like two seconds to cover that distance of five metres.

13. In the next part of his report under the heading "The Driver's Response", he draws the conclusion from the foregoing parts of his report that it appears likely that the plaintiff was only in the line of sight of the 1st defendant for about two seconds. Furthermore, based on the 1st defendant initiating braking physically half a second prior to the impact, he therefore concludes that the response time of the 1st defendant was 1.5 seconds. He goes on to state that this response time is made up of perception and reaction. The perception time, according to Professor Mackay, is influenced by the complexity of the visual field, the extent to which an object is contrasted against its background, the size of the object, how peripheral it is to the line of vision of the driver, how quickly it is moving across the driver's visual field and a number of other factors. The reaction time in this case covers the time for moving the foot onto the brake pedal and applying force to the brake pedal.

14. From all these, Professor Mackay concludes in these terms :-

"... Considering the environment in which he was driving, with many other motions and events occuring within his visual field, a response time of a second and a half would be a normal response time."

15. In the last part of his report under the heading "The Nature of the Impact", Professor Mackay states that having considered the damage to the lorry and nature of the injuries to the plaintiff, together with the point of impact and the position of the plaintiff on the road after the impact when at rest, he does not think that these factors can usefully add anything to the above analysis of the pre-impact circumstances. He further states that the brain injuries to the plaintiff likely arose both from the impact with the truck and from contact with the road surface due to the plaintiff's own velocity of around 6 mph when his head came into contact with the lorry.

The law

16. The law in relation to when expert evidence on liability may be relevant and therefore admissible in road traffic cases has been stated with clarity and precision by Stuart Smith LJ in Liddell v. Middleton [1996] PIQR P36 where he said at P42 :-

"... In some cases expert evidence is both necessary and desirable in road traffic cases to assist the judge in reaching his or her primary findings of fact. Examples of such cases include those where there are no witnesses capable of describing what happened, and deductions may have to be made from such circumstantial evidence as there may be at the scene, or where deductions are to be drawn from the position of vehicles after the accident, marks on the road, or damage to the vehicles, as to the speed of a vehicle, or the relative positions of the parties in the moments leading up to the impact."

17. Stuart Smith LJ then goes on to state when expert evidence would be irrelevant and inadmissible as follows :-

"... What he (the expert) is not entitled to do is to say in effect 'I have considered the statements and/or evidence of the eye witnesses in this case and I conclude from their evidence that the defendant was going at a certain speed, or that he could have seen the plaintiff at a certain point'. These are facts for the trial judge to find based on the evidence that he accepts and such inferences as he draws from the primary facts found. Still less is the expert entitled to say that in his opinion the defendant should have sounded his horn, seen the plaintiff before he did, or taken avoiding action and that in taking some action or failing to take some other action, a party was guilty of negligence. These are matters for the court on which the expert's opinion is wholly irrelevant and therefore inadmissible."

18. In summing up the whole matter, Stuart Smith LJ said at page 44 :-

"... But in road traffic accidents it is the exception rather than the rule that expert witnesses are required. ... "

My decision

19. It is common ground between the parties that this is a simple running down case, one that happens almost daily in Hong Kong streets. There are also eye witnesses to this accident, witness apart from the 1st defendant who can recount the speed and the manner in which the lorry was driven prior to the collision, as well as witnesses apart from the plaintiff himself who can testify as to the movements of the plaintiff before the impact with the lorry.

20. Despite his customary eloquence, Mr Sarony who appears for the defendants in this case, has not even began to tell me how this case is an exception to the general rule thus necessitating expert evidence.

21. Dealing now with the expert report of Professor Mackay, insofar as the scene is concerned, that part of Professor Mackay's report is compiled from photographs and sketch plans made by the police as well as from police investigation into this accident. His own visit to the scene two years after the accident is, in my view, quite irrelevant.

22. As to the next part of Professor Mackay's report under the heading of 'Analysis', my first comment is that his observation as to the speed of traffic at the very same spot two years after the accident is again wholly irrelevant. Possibly the only true area of expertise in his whole report is the equation by which deceleration is calculated. However, the issue of liability involving negligence in this case is to be decided by a determination of what were the circumstances immediately prior to collision whereas deceleration, per se, is only pertinent to what happened after the brakes were applied and as such deceleration is of little or no relevance to the question of negligence in this case. Moreover, the four conclusions arrived at by Professor Mackay under the heading of 'Analysis' are matters for the trial judge to find based on the evidence which he accepts and such inferences as he draws from the primary facts found.

23. Likewise, the speed that the plaintiff was walking or running and the driver's response are also matters for the judge to find after hearing the evidence. These are not matters which the trial judge would need expert evidence to assist him on.

24. For these reasons, I am of the view that the expert report prepared by Professor Mackay is wholly irrelevant and therefore inadmissible. Accordingly, the appeal is dismissed and the order of Mr Acting Registrar Chan stands.

25. There will be an order nisi that the costs of this appeal be to the plaintiff. Both sides having seen fit to appear by senior counsels, I would, in the circumstances, order certificate for two counsels.