LEE CHUNG LOK v. HO KAT KIT

HCPI363/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 363 OF 2007

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R U L I N G

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1.  The issue at the Pre-Trial Review concerns the admissibility of expert evidence on liability, namely, the epileptic state of the defendant at the time of the traffic accident.

2.  The Defence pleaded automatism, and the defendant produced 3 medical reports from Dr. Edmund Woo in support.

3.  Mr. Ng, for the plaintiff, does not object to the admissibility of the reports, but wishes Dr. Woo be called to be cross-examined.

4.  Mr. Reeves, for the defendant, submitted that is not necessary, or at any rate, the matter should be left to the trial judge.

5.  There seem to be three reasons why Dr. Woo should be called.  Firstly, there is challenge to the basic facts on which Dr. Woo gave his opinion and, as Mr Reeves has pointed out, that is a matter of evidence.  Doctors are as good as the facts on which they can rely to give the opinion, so it is a matter to be resolved on the witnesses of fact.

6.    Secondly, there is challenge to the weight of the doctor's opinion by reason of inconsistencies in his 3 reports.  Mr. Reeves submitted that is a matter which is better left for the trial judge because a trial judge may be of such opinion that inconsistencies in the report will lead to rejection of the opinion without calling the doctor.  Of course, the view of the witnesses of fact can also be taken into account by the trial judge.  I think Mr Reeves' suggestion is eminently sensible.

7.  Thirdly, Mr Ng challenged Dr. Woo's criteria of whether an epileptic is fit to drive, i.e., whether only nocturnal attacks for a period of 3 years before the accident.  The plaintiff's own expert, Dr. Choa, did not challenge that criteria nor put forward any other rule or test for assessing fitness to drive in the case of epileptics.  I do not think it is open on the state of opinions as is for Mr. Ng to go at large to challenge that criteria.  Of course, if Dr. Woo is called, then he may be asked the question but that will not per se necessitate the calling of Dr. Woo. 

8.  The other aspect, i.e. the exclusivity of nocturnal attacks or daytime attacks as well, is a question of fact, which is the same as the first point.

9.  Hence, I adopt Mr. Reeves' suggestion to have the doctors on standby during the trial period in the Running List and, if required, the trial judge will give directions to call the doctors.  Otherwise, they can be dispensed with.  I am not going to tie the hands of the trial judge.