ALAN DEAKINS v. LEUNG KWONG WAI HUMPHREY

   HCPI 617/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 617 OF 2007

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BETWEEN

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R U L I N G

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1.   This is my ruling on the defendant’s application to adduce three witness statements :

(1) the first one is the defendant’s own further statement;

(2) the second one is his wife’s further statement, and both (1) and (2) are dated 23 June 2009; and

(3) the third one is a Trackman Report dated 24 March 2009 sought to be produced by one Frederik Brink of Trackman as an expert report. The Trackman Report was dated 24 March 2009 whereas Mr Brink’s statement was dated 17 June 2009.

These three statements cover various aspects of the case, I shall deal with the Trackman Report first.

The Trackman Report

2.   As far as I understand with my limited knowledge of physics, computer and mathematical calculations, the Trackman Report basically has two main contentions on a test conducted on the defendant some time in March this year. Mr Brink concluded that :

(1) the defendant could not hit his ball with a 7-wood, as far as where the plaintiff was on the date of the accident. The inference is of course that it was not the defendant’s ball which hit the plaintiff; and

(2) if that is the case, then the next question that everyone would ask is : Whose ball would that be? Mr Brink suggested that it might come from the 15^th Tee, i.e. the next hole after the 14^th hole besides what some club members called the “halfway house”, although it is not half way. It is a place where people can go to the toilet and have a drink or even a snack, say hot dog, etc. As far as I know Clearwater Bay members give it a nickname called “a-million-dollar-mansion” because it was built for more than a million dollar.

3.   In respect of the first part, we have to read the Defence again and see what was the original Defence and the new Defence put forward by the new statements. Paragraph 5 of the Defence says that :

“Save that a golf ball struck the Plaintiff, paragraph 5 is not admitted. Further, the Defendant does not admit that the Plaintiff was struck by the Defendant’s golf ball.”

Paragraph 6 says that :

“a. The Defendant does not admit that the Plaintiff was struck by the Defendant’s golf ball as averred in paragraph 5 above.”

Item b is not quite relevant to the issue before me now :

“b. If, which is not admitted, that the Plaintiff was struck by the Defendant’s golf ball, it is denied that the accident was caused by the negligence of the Defendant as alleged in paragraph 6 or at all and each and every allegation contained and particularised therein is specifically denied.”

4.   In other words, it is true that the defendant did not admit that it was his golf ball which struck the plaintiff, but the defendant had not made any positive averment here. He did not say that :

(i) “I am a golfer at that time who could not hit the 7 Wood and reach the plaintiff at the position where he was when he was hit by a golf ball.”;

(ii) “The golf ball might be hit by the 2^nd or 3^rd golfer who teed‑off after me.”;

(iii) “The timing between the time I hit the golf ball and the plaintiff being struck by the golf ball would suggest that I was not the one who hit that very golf ball which eventually landed on the forehead of the plaintiff.”; or

(iv) “The very golf ball which hit the plaintiff might have come from one of the golfers on the 15^th Tee.”

5.   In other words, the defence put forward was a passive defence in the sense that it was only by way of denial, non-admission, or put in another way by a passive averment : “You prove that I was, or I put you to a strict proof that I was the one who hit that golf ball.” Anything else he would have to put in a positive averment, without which he could not lead evidence to support that. I will come back to that when I analyse various parts of the witness statements of the defendant and his wife because there are various aspects or parts put forward by them which may be considered differently.

6.   In respect of the Trackman Report, for the first part, i.e. the defendant’s skill in playing the game of golf or lack of the same would prove that the defendant could not be the one who hit that very golf ball because he only hit his 7 Wood and the ball could not be hit for more or less 155 yards away. Anyone with golfing experience for, say, 10 or 20 years would have known that the average distance hit by an average golfer with the 7 Wood is about 175 yards. Of course I am not giving evidence; both parties can check from their experts and confirm or disagree with this contention. Be that as it may, 155 yards here is a down slope distance.

7.   This brings me to another point that the test was not done immediately or shortly after the defendant hit his golf ball on 23 December 2006. It was about two years and three months afterwards when the defendant has given up playing in Clearwater Bay Golf Club altogether and played less golf and only played occasionally of the game in the Mainland. (Of course the plaintiff also complained that his side and his only expert were not informed to be present when the test was done.)

8.   With all these mathematical calculations and computer analysis, Mr Brink came up with an expert suggestion that the defendant could not have hit the 7 Wood and reach where the plaintiff was. To my mind this has no probative value at all, and it is not relevant or necessary because the defendant has not made any such positive assertion in the defence.

9.   Mr Coleman strongly submitted that in light of the new CJR, one should not plead anything unless he can be supported by positive evidence. The answer to that is the Trackman test should have been done earlier in the presence of the plaintiff’s team of lawyers and expert. (In fact the test was done in March 2009 but was not revealed until June 2009.) Now it is too late to seek to adduce this evidence since admitting the same would mean that the defendant would have to amend his defence and make the positive assertion in the defence, into which the plaintiff would have to make thorough investigation and test which seems to be not possible now because even if the defendant is willing to submit himself for the same test, it would not be as accurate as the test conducted in March this year or shortly after the accident because of the time gap and other factors. This would also mean that the milestone’s dates of the trial in September would have to be moved. The court nowadays, of course, would be very reluctant to move any milestone’s dates which means a delay in the trial of the case.

10.   The other hypothesis of Mr Brink is that the ball might well be struck by a golfer from the 15^th Tee. This is a totally new contention and not supported by any pleading or discovery. I say no discovery because the defendant has all the resources to tell us who were the four balls in front of the defendant; what are their names; what handicap they have and what time they teed‑off from the 15^th Tee and whether anyone of them had hit his ball from the 15^th Tee over the 14^th hole to the 13^th hole. All these were not disclosed.

11.   This is important because Mr Ozorio has said that that golfer should have hit at least 250 yards. In fact, to be fair, Mr Ozorio did not say that that golfer should have hit at least 250 yards, he just measured the tee on the 15^th Tee to the white cross where the plaintiff was hit, and that was about 250 yards. But any golfer would have noticed that that person should at least hit 300 yards in order to reach the plaintiff. If one looks at the plan at page 88 of the bundle, then the ball actually hit the plaintiff on the forehead when he was facing towards the position and the direction of the 13^th Green and 14^th Tee. So a golfer must have hit a long distance over an elevated green on the 14^th Tee (from the view of the 15^th Tee) and, before that, escaped all the trees in front of it and the trees on the other side and came back with a hook and hit the forehead of the plaintiff because he was not hit on the side or the back of his head. Then the ball should have travelled at least 300 yards; I mean the hook’s pathway would have travelled about 300 yards. In other words, that golfer could nearly hit the 13^th Green from the 15^th Tee. That being the case, then who was that powerful golfer is in issue? People who can hit that kind of distance would at least be a scratch handicapper. To my mind, a scratch handicapper could not hit that far unless he has the handicap of +5 which is the usual handicap of pro in the tour. Of course people who play golf would ask the question : “Why should a golfer who can hit a driver of 6º or 8º loft and who can hit 300 yards, use the driver on the 15^th hole? Any expert golfer with that kind of handicap, say +5, would just use a “4 iron” to hit to the centre of the fairway of the 15^th and use a “5 iron” to reach the green in this short par 5 15^th hole in two and make either a eagle or two putts for a birdie.

12.   So, that suggestion of the ball might come from the 15^th Tee to my mind is a wild suggestion. But in any event, even if it is physically possible for an expert golfer with a +5 handicap to reach the plaintiff, it would only be an hypothesis because we are dealing with an actual golfer who teed-off that day on the 15^th Tee in front of the defendant’s group. The question still is : Who could have hit that ball in such a way and who was he? In the end this Report has no probative value.

13.   I understand in the end it is a defence of the defendant that he did not admit that it was his ball who hit the plaintiff, but that was a denial and he could not make any positive averment unless he pleaded such positive averment, failing which he could only adopt a passive attitude and through his counsel by way of cross-examination, to suggest that it might be another ball which hit the plaintiff.

14.   In the end I think in respect of both limps of Mr Brink’s expert report, it should not be admitted. I did not go into the difficult questions of all these mathematical calculations, order of accuracy and experimental environment and the time gap of two years and three months, on which the accuracy of this scientific report depends.

Defendant and his wife’s further statements

15.   The next question is whether the defendant’s supplemental witness statement and his wife’s supplemental witness statement should be admitted. As I have said earlier, they cover mainly two parts : (1) the timing; and (2) the “shout test”. If I am wrong on the positive averment part of these allegations and if they are entitled to adduce evidence in these two aspects : the first one is the timing or the sequence of play of three golfers on the 14^th Tee did not fit in with the timing of the plaintiff being hit by the defendant’s ball. This additional evidence by way of supplemental witness statement should not be admitted because it came too late. This should be included in the original witness statement. After the writ was issued on 17 July 2007, there has been ample of time for the defendant to prepare his defence and this should have been included in the first witness statement. The fact that they were made on 23 June and leave was sought in the 3^rd PTR, 30 June this year, is indicative of the fact that they came too late. On the same footing, if I allow the witness statements to be filed and served, and evidence is led in that respect, then the plaintiff would have to make investigations which should be made, at least by the site visit on 23 December 2008. The same can be said of the shout test. Both items were not raised at the time of the first site visit, and to allow the defendant to put in the supplemental witness statements at this stage would mean that, as I have repeatedly said, it would render the plaintiff’s side to have to conduct further investigation in order to meet these new allegations.

16.   For the same reason I would not allow the two supplemental witness statements of the defendant and his wife to be filed and served. Any court nowadays would not allow a litigant to file a further statement or expert report if the milestone date of trial would be affected.

17.   Having said that I do not find the Trackman Report has usurped the Court’s function to decide whose ball had struck the plaintiff. If the Trackman method is acceptable in the industry, it would be a piece of evidence for the Court to consider whether it would be another ball which hit the plaintiff.