XCHRX CHEUNG KAM SANG v. LAM GEOTECHNICS LTD.

HCPI 491/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.491 OF 2001

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J U D G M E N T

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1. This matter arises, at least on documents, as an appeal from the order of Master Kwan made on 13 December 2001. However, it is not apparent from that sealed order given by the Master that she had made the order which is appealed from. Consequently, the plaintiff's counsel has adopted an alternative approach, that this is either by way of appeal from the Master's order or as a separate application by him today.

2. Whatever the origin of this application one thing is clear, the defendant is not taken by surprise. Indeed it appears from what Ms Cheung said to me today that the defendant agrees that such an order was made by the Master although not reflected in the sealed order, which effectively prevented the plaintiff from serving a further report of Mr Raymond Ng in reply to the defendant's expert report. The defendant's stance today is that the plaintiff should not be allowed to serve such a report in reply.

3. In so far as the substantive issue is concerned, it was ordered by the Master that the two expert reports, one of Mr Raymond Ng for the plaintiff and the other report, that Mr Martin Lee for the defendant, be adduced into evidence without calling the makers at the assessment hearing in this matter. The two experts are experts in relation to prosthesis. Mr Ng's report was dated 12 May 2001 whereas Mr Lee's report was dated 5 October 2001 in which he had the benefit of seeing Mr Ng's report and commenting on it.

4. The plaintiff's application is that Mr Ng should be allowed to serve a further report to comment on what has been said by Mr Lee in his report. Without going into the details of both reports, it is sufficient for present purposes to say that there are substantial differences between the two experts in what they recommend. The defendant objects to this course saying that since the two experts had stated their respective opinions in their reports, it is not necessary for further report to be filed.

5. I take the view that where expert reports are to be put before a judge without the experts being called to give live evidence and therefore no cross-examination of the experts at the hearing, it is important that the judge be fully appraised of the differences and more important the reasons for their opinions before the judge can effectively determine the issue arising from such differences as there may be between the experts.

6. Here, where the defendant's expert had the advantage of seeing the report of the plaintiff's expert and commenting upon it, fair play demands that the plaintiff's expert be given a like opportunity of commenting on what has been said by the defendant's expert. This can only be to the benefit and the assistance of the judge having to make a decision on substantially differences in opinions between these two experts. Moreover, it is normal that the plaintiff should, in such circumstances, have the right to last word.

7. For these reasons, I will grant the plaintiff's application and order leave be given to the plaintiff to serve a further report from Mr Raymond Ng within 21 days but that further report be limited to commenting on what has been stated by Mr Lee in his report of 5 October 2001.