CHAN WAI YING v. SIN KIT SANG AND OTHERS

HCPI 805/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 805 OF 2006

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R U L I N G

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1.  Just after 2 a.m. on 25 July 2005 Tsai Chung Yung lost his life in a traffic accident.

2.  At a lay-by in Wylie Road, adjacent to the slip road leading to Queen Elizabeth Hospital, he hailed and boarded a taxi that was travelling towards Mongkok.  His directions required the driver to undertake a U-turn, a legal manoeuvre in Wylie Road, save of course for the need to ensure the way is clear.  This instruction was the last conscious act of Mr Tsai. 

3.  As the driver proceeded into the turn, straddling the north (Mongkok) bound and south (Yau Ma Tei) bound lanes, his taxi was struck by a Lamborghini Diablo travelling in the Mongkok bound lane.  The Lamborghini drove into the taxi’s right rear passenger door.  The force of the impact spun the taxi 180^o on a central axis.  Mr Tsai, who was sitting on the rear bench seat, had not yet buckled his seat belt.  Thus unhindered he was hurled along the seat, and his head struck the pillar between the driver’s door and the right rear passenger door with a force that probably killed him.  Then he was flung through the window onto the pavement. 

4.  Later that morning at QEH Mr Tsai was pronounced dead.

5.  This is an action founded in negligence for damages brought by Mr Tsai’s estate against the driver and owner of the Lamborghini (the 1^st and 2^nd defendants) and the driver and owner of the taxi (the 3^rd and 4^th defendants).

This Application

6.  In circumstances and for reasons I shall come to, the 3^rd and 4^th defendants as a prelude to trial applied to a Master for leave to admit in evidence two reports compiled by Professor Murray McKay.  Professor McKay is a pre-eminent expert in the field of road traffic accident investigation and reconstruction.

7.  The first report dealt with the extent to which Mr Tsai’s injuries may have been rendered less severe had he been wearing a seat belt.  The second concerned an analysis by Professor McKay of data available to him to determine the speed of the Lamborghini as it approached the scene of collision.

8.  The Master refused the application.

9.  This is an appeal by rehearing from the Master’s refusal to allow in the second of the two reports.

KCCC 438/2005

10.  This was a prosecution of the charge of Dangerous Driving Causing Death brought against the 1^st defendant.  Following trial he was convicted and sent to prison.  He appealed the conviction and lost that.  Then he applied for leave to appeal to the Court of Final Appeal but was denied leave.

11.  At a checklist review hearing it was ordered that plans and photographs of the scene and all other documents prepared for the purpose of the trial and all statements and the transcript of the trial be available at the trial of this action.

12.  For the purposes of this appeal it behoves me to deal with that material and the evidence adduced and findings in some detail.

The Scene

13.  Wylie Road is straight and the distance from the Gascoigne Road junction (the Yau Ma Tei end) to the scene of the collision adjacent to QEH is 332 metres.  Thus if one were looking back from the lay-by south towards Gascoigne Road one’s view would be unimpeded, save for traffic on the road.

14.  Wylie Road has a dual carriageway of single lanes separated by a broken white line.  The speed limit is 50 kph.  The lay-by in question has a bus stop, but there is also room for taxis to stand there for passengers although there is no taxi rank as such.

15.  On the night of the accident the street was well lit.  The weather was fine and dry. 

16.  The Lamborghini left significant strips of rubber on the road consistent with heavy braking.  One of the skid marks was 40 metres long. 

17.  The taxi having spun a half circle came to rest hard up against the railing on the side of Wylie Road opposite QEH, more or less opposite and facing the point from where it had emerged from the lay-by.

18.  The Lamborghini had proceeded further down Wylie Road before colliding head on with the same railings.

The Eye Witnesses

19.  Statements were taken from two bystanders.

20.  The first was a pedestrian; a girl of 12 who had been walking alone, northwards on Wylie Road, on the pavement on the QEH side.  She had reached a point beyond the lay-by and thus events as she was able to describe required her to turn and face the way she had been coming from.  It was the sound of heavy braking that alerted her.  As she turned she saw “a racing car in yellow” just before it crashed into the side of a taxi.  She then described the aftermath.  She was not asked about, nor did she give, an estimate of the speed of the Lamborghini as it approached.  Realistically, she would have not been able to provide one.

21.  The second bystander was also a taxi driver.  He had driven his taxi into the lay-by and was available for hire.  The taxi caught in the collision having been hailed pulled into the lay-by, stopping immediately behind him.  He saw a passenger climb aboard, and the taxi then moved off, immediately turning right as it began to U-turn.  A sketch he drew revealed that the turn was undertaken to the south of his position in the lay-by, so that it was behind him and not in his direct line of sight.

22.  He, too, was alerted to something out of the ordinary by the sound of heavy braking, followed immediately by the bang as the vehicles converged.  Just prior to the collision he described the speed of the taxi as “just normal”, about 10 kph.

23.  He was not asked of the speed of the Lamborghini as it approached nor did he proffer a view.  Again in the circumstances it would not have been possible for him to have assisted on this point.

The Versions of the Drivers Involved

24.  These emerged from statements made to the police and then as evidence in the trial.

25.  The 3^rd defendant, who was obliged to ensure the way was clear before undertaking the U-turn, stated in his statement that he saw the lights of a vehicle approaching from the Gascoigne Road direction which he estimated were 50 metres away.  But in a subsequent statement he changed that to 150 metres.  Finally when he was giving his evidence he further advanced the distance to 200 – 300 metres.  But he conceded that only a rough estimate was possible.

26.  He was asked in cross-examination if he could estimate the speed of the approaching car but he said he could not.

27.  The 1^st defendant in a statement to the police stated that as he approached the scene of the collision he was driving at 50 kph.  He chose not to give evidence at his trial.

The Expert Evidence

28.  Kwok Nai Chiu is a chemist in the Forensic Science Division of the Government Laboratory.  He is qualified to undertake traffic accident reconstructions, and was engaged by the prosecution to carry out a reconstruction and thereby establish the range of speeds within which the Lamborghini was likely to have been traveling at prior to the collision.  To this end he attended the scene and examined the vehicles, the rubber left on the road and other data available to him.

29.  He also undertook tests using a Government car, being a Mazda 323, and applied to his results a computer programme called EDCRASH.

30.  He reported that the Lamborghini was travelling at 103 kph with a margin for error of ±15%; thus that the speed was somewhere between 87 and 118 kph.

31.  Mr Kwok was called to produce his report and answer to it. 

32.  It is noteworthy that Mr Kwok was extensively cross-examined by senior counsel representing the 1^st defendant at trial and his conclusions were called into question.

33.  In the result the Magistrate found the defendant guilty of the offence for which he had been charged.  His reasons stated in part:

“… that the defendant was at least traveling at 80 kilometres per hour, as corroborated by the 40-metre skid marks; that he was unable to stop despite the taxi’s clear presence; that the impact was so forceful that the rear axle of the taxi was displaced; I find that there can be no other finding but that the defendant’s driving fell far below what would be expected of a competent and careful driver, and that it was obvious to such driver that to drive in such a manner would be dangerous.

I find that I do not have to rely on the expert report’s conclusion alone to make my finding on whether the defendant’s driving was dangerous.  The speed that the defendant was driving was relevant but only to a certain extent, as demonstrated in the cases submitted by defence as well.  It was his manner of driving, taken in the whole, that I have to consider.  Speed is one factor, but even if I had placed full weight on the report, I would still have to err on the side of caution and grant the benefit of the doubt to the defendant of the 15% tolerance, which would have brought the speed of the defendant’s vehicle to about 85 kilometres per hour, which is more or less in line with what the Road Users’ Code suggests.

My finding is that when taking the whole of the circumstances as set out above, the defendant’s driving fell far below that of a competent and careful driver, and it would be obvious that such manner of driving was dangerous.  That is to say, the failure to keep a proper look-out for vehicles on the road while traveling at speed inappropriate to the circumstances.”

34.  I have already stated that that finding was not disturbed on appeal.

Professor McKay’s Report

35.  Professor McKay had at his disposal material made available to Mr Kwok and Mr Kwok’s report including his conclusions.  His brief was to assess the speeds of the vehicles up to the point of impact; in particular the Lamborghini.

36.  I do not propose to examine in detail the report and reasoning; that is for the trial judge if the report is allowed in.  Suffice to say that he criticizes Mr Kwok’s methodology; in particular, his relying on data obtained from tests using a Mazda 323, when the car in question is or was a high performance racing machine, with powers of acceleration and deceleration so far removed from a conventional saloon car as to materially skew the results.  He concluded that the speed at which the Lamborghini had been travelling would have been in the region of 119 kph ± 5%; thus at or above the upper limit of Mr Kwok’s range, but a significant 32 kph more than the lower limit.

Recent Developments

37.  In their pleaded defence the 1^st and 2^nd defendants deny that the accident was caused or contributed to by the negligence or breach of a common duty of care of the 1^st defendant; that the accident was wholly caused or at least contributed to by the negligence of the 3^rd defendant.

38.  They further pleaded that the deceased contributed to his losses by failing to have worn a seat belt.

39.  However, in a letter of 26 April 2007, their solicitors wrote to those representing the plaintiffs and 3^rd and 4^th defendants conceding that the 1^st defendant was negligent and caused the deceased’s death, but without prejudice to their case that the 3^rd defendant was negligent and also contributed.

40.  It is also conceded that the 1^st defendant was driving the Lamborghini just prior to the accident “at an excessively high speed”.

41.  For completeness I mention that I was told that the 1^st and 2^nd defendants would not be seeking a contribution from the plaintiff notwithstanding that the deceased was not buckled up.  However that was not to exclude the 3^rd defendant from responsibility and liability given the duty of a driver to require his passengers to wear a seat belt.

The Issues

42.  With the 1^st defendant’s admissions now before the court, the principle matter for the trial judge to determine will be the extent, if at all, to which the 3^rd defendant contributed in negligence.  He owed a duty to ensure the way was clear from both directions before and during his U-turn from one lane to another, keeping a continuous lookout throughout.  The judge will need to determine as to whether or not he should have given way to the fast approaching Lamborghini.

43.  It is immediately apparent that important if not crucial to his defence will be the speed at which the Lamborghini is found to have been travelling at in its approach to the scene.  If, for instance, the 1^st defendant’s assessment of 50 kph were true, then clearly his proximity would almost certainly result in the 3^rd defendant having to face at least some of the liability for failing to give way.  Of course there is his concession that he was driving at an “excessively high speed”.  But what does that amount to?  Half as much again as the legal speed limit (75 kph) or more, or less?

44.  One has to bear in mind that senior counsel put on his behalf at his trial in the Magistrate’s Court that “… he may have been going a little bit quickly …”.

45.  On the other hand, if a speed approaching Professor McKay’s findings is established, at or close to 120 kph, that would have put the Lamborghini so much further back down Wylie Road as the 3^rd defendant began and moved into his manoeuvre, and could, I should think, materially decrease the prospect that he caused or contributed to the accident, and perhaps render as reckless the 1^st defendant’s driving.

46.  For this reason, says Mr Ozorio SC, who represented the 3^rd and 4^th defendants, it is crucial for justice to be achieved and to allow a proper determination to be made that Professor McKay’s report be before the Court.

47.  And this gave rise to this application.

The Legal Principles

48.  The general rule in traffic accident cases of this kind is that the courts are likely not to permit in evidence an expert’s analysis of the likely speed of those involved, determined by a reconstruction of events.  This is to avoid the usurping by the expert of the judge’s function of coming to findings of fact and the legal consequences of that.

49.  The benchmark has been established by Stuart-Smith LJ in Liddell v Middleton (1996) PIQR 36, which was also a road traffic case.  The judgement followed an appeal from the trial judge.  In the course of the trial the judge heard evidence from an expert who had been called by the plaintiff.  One of the complaints made by the appellant’s counsel was that the judge had been over-influenced by the expert’s evidence.  With this in mind it is useful to repeat here what Stuart-Smith LJ had to say on the role of the expert in such cases and on the necessity of calling experts.  The material parts of his judgment are these:

“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.

In such cases the function of the expert is to furnish the judge with the necessary scientific criteria and assistance based upon his special skill and experience not possessed by ordinary laymen to enable the judge to interpret the factual evidence of the marks on the road, the damage or whatever it may be.  What he is not entitled to do is to say in effect ‘I have considered the statements and/or evidence of the eyewitnesses 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 experts’ opinion is wholly irrelevant and therefore inadmissible.

…

We do not have trial by expert in this country; we have trial by judge.  In my judgment, the expert witness contributed nothing to the trial in this case except expense.  For the reasons that I have indicated, their evidence was largely if not wholly irrelevant and inadmissible.  Counsel on each side at the trial succumbed to the temptation of cross-examining them on their opinions, thereby lengthening and complicating a simple case.

There has been a regrettable tendency in recent years in personal injury cases, both road traffic and industrial accidents, for parties to enlist the services of experts whether they are necessary or not.  When they are not necessary, they simply add to the already high cost of litigation and the length of the trial.  In industrial accidents an expert may well be needed to explain complicated machinery or to give evidence of practice and safety procedure.  But in road traffic accidents it is the exception rather than the rule that expert witnesses are required.  Where the plaintiff is in receipt of legal aid the Legal Aid Board should not authorise the employment of an expert witness without the opinion of counsel as to the matter upon which an expert’s opinion is required and the necessity for such evidence.”

50.  I have had referred to me some local authorities and accept that the principle I have extracted from Liddell v Middleton has been approved and applied in Hong Kong.

51.  These cases include Tong Ho Wing v Wong Fuk & Anor (unreported), HCPI 1369 of 1999, Cho Kam Chuen v Tse Chi Hung (unreported), HCPI 170 of 2000 and Young Christopher Gordon v Lee Chu (unreported), HCPI 1484 of 2000.  I have also found a further case Fong Sai Ho v Harifast Co. Ltd & Ors (unreported), HCPI 1199 of 2003.

52.  In all of these cases applications for reconstruction evidence were turned down.  In Fong Sai Ho v Harifast, Deputy High Court Judge Carlson said:

“The starting point is that in road traffic accident cases it is the exception rather than the rule that expert witnesses are required.”

The Arguments

53.  Mr Ozorio has argued that this case falls into the category of the exceptional. 

54.  The crucial feature is that no witness is capable of giving a reliable account of how fast the Lamborghini was travelling and thus how far away it would have been from the point of collision when the taxi was proceeding into its U-turn.

55.  The two disinterested bystanders were in no position to judge nor did they attempt to do so.  The 1^st defendant’s statement and his counsel’s submissions at his trial in the Magistrate’s Court suggest he cannot be relied upon to give an accurate account.  The concession he now makes is too general to allow the court to calculate where he probably was on the road when the taxi began its turn.

56.  The 3^rd defendant’s changing stance as to how far back the taxi was reveals the same feature of unreliability.  To be fair it is very difficult, with hindsight, to judge distances between vehicles at a given time when they are coming together.  Various estimates from 50 metres to up to 300 metres demonstrate that difficulty.  The court will have no confidence in his evidence either.

57.  Which leaves Mr Kwok’s report.

58.  But there are difficulties about this as well. 

59.  Professor McKay has addressed shortcomings and inaccuracies.  He can be called under O.38 r.41 RHC to be cross-examined.  But unless this application is granted there will be no evidence to rebut his report and his responses in cross-examination.

60.  Counsel for the 1^st defendant has attacked the report with vigour in the other forum and may do so again.  The court at trial may be left with no reliable evidence at all on the issue. 

61.  There is the further factor that this is an unusual case because it involves a vehicle which has all the attributes of a racing car, whose performance capabilities are outside the experience and ambit of laymen, including eyewitnesses and your average judge.

62.  Miss Loh representing the 1^st and 2^nd defendants submits that this is not a case which falls outside the general rule that expert evidence on the cause of an accident should not be admitted.

63.  The circumstances are not in dispute. 

64.  The 1^st defendant has through his solicitors admitted negligence and driving at an excessively high speed.  Mr Kwok’s report provides a range from which can be adduced the matter of distance.  The court does not need evidence of exact speed to establish where the fault lies.  The court will be in a position to assess an apportionment of liability given the material expected to be before it.

Determination

65.  Is this an exceptional case?

66.  First, there are witnesses and these include bystanders with no interest in the outcome.  But it is likely there will be no reliable account of speed and distances.  The capabilities of the Lamborghini are well outside those of the conventional saloon car, and thus outside the experience that a witness and judge can bring to the judicial process. 

67.  Secondly, there is already admitted in evidence an expert’s report, and the right for either party to have the author called to be cross-examined on it.  But he is a witness of neither party and for different reasons all defendants are critical of his methodology and conclusions.  If there is already expert evidence available to the court which one party or another finds wanting, should not that party be entitled to call his own expert to counter it?

68.  In my view, commonsense and justice requires me to treat this case with its particular circumstances as one which falls into the exceptional category; one which calls for an expert with particular expertise of the attributes of a high performance sports car as this Lamborghini.

69.  This will not, as I find, amount to a trial by expert, or experts.  This will not be to usurp the proper function of judge, whose role will remain to determine the facts and draw such inferences as he may from them.

70.  In the circumstances, I allow the appeal and grant the application.  There will be consequential leave for the 1^st and 2^nd defendants to call an expert on terms to be agreed, with liberty to apply.

71.  The costs orders are nisi. 

As for the appeal:

The costs of the 3^rd and 4^th defendants are to be borne by the 1^st and 2^nd defendants in any event.

In respect of the plaintiff’s costs there shall be no order.

As for the applications before the Master:

The costs of the plaintiff and 1^st and 2^nd defendants insofar as they relate to the application to admit the seat belt report are to be borne by the 3^rd and 4^th defendants in any event.

The costs of the plaintiff and 3^rd and 4^th defendants incurred in respect of all other matters are to be borne by the 1^st and 2^nd defendants in any event.