CHEUNG CHI HUNG v. KONIVON DEVELOPMENT LTD. AND ANOTHER

CACV 161 & 166/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 161 & 166 OF 2000

(ON APPEAL FROM HCPI 1360/1999)

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J U D G M E N T

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Hon Rogers JA :

1. These are two appeals from an interlocutory order which was made by Seagroatt J on 13 April this year. The case has unusual features about it.

2. The plaintiff had been injured as long ago as 1992 in a traffic accident for which he was entirely blameless. There has been a concession of liability of 100% in his favour. This is not surprising since the plaintiff had been driving along a dual carriageway road, he had been hit by a vehicle which had been caused to come from the other side in the opposite direction. Because of the combined speeds of the vehicles, he had been very severely injured and he is unfortunately paraplegic. We are told that his condition is so bad that it is not possible for him to give evidence at the trial which is scheduled for next week.

3. The history of the matter is that on 8 December of last year, the judge ordered that there be leave to the defendants to file and serve a report from a neurologist, urologist, psychiatrist, psychologist, speech therapist, physiotherapist, rehabilitation consultant, architect and nursing service consultant by 29 February 2000. This was to answer, as one understands, the reports which had been filed on behalf of the plaintiff.

4. When the matter came back before Seagroatt J on 13 April, he ordered that no expert oral evidence is to be adduced at the trial but the reports of the experts of the respective parties had to be incorporated in a bundle to be prepared by the plaintiff's solicitors and lodged by 23 May 2000. He also ordered that a joint statement is to be prepared by the parties' respective occupational therapists as to the nature and frequency of the occupational therapy required by the plaintiff.

5. The bundle of experts' reports is due to be filed today and we have been shown a copy of it. The bundle extends to some 700 pages. This court has only had a chance to glance through the bundle and glance at some of the pages. Needless to say, it did not take very long to find that some of them are clearly irrelevant. What perhaps is more to the point, it seems that, apart from the preparation of the plaintiff's revised statement of damages which includes a column for the defendants' reply, there has been very little progress in finding out what is in agreement and what is in disagreement between the experts.

6. I think it is perhaps not inapposite to quote from a discussion paper on civil justice prepared by the Department of Justice in Victoria entitled "Going to Court". At page 138, it is said :-

"Expert Evidence

Expert evidence is one of the main items covered in all of the recent, high level examinations of civil justice issues around the common law world. It has attracted this interest for two main reasons. The first is the contribution that expert evidence makes to the cost and length of litigation. The second is the suggestion often made that, as a feature of the adversary system, much of what poses as expert, impartial evidence is not impartial and sometimes not particularly expert. Lord Woolf said in his Interim Report that two of the major generators of unnecessary cost in civil litigation are uncontrolled discovery and expert evidence. He observed in the Final Report that no one had seriously challenged that contention."

7. I cite that simply because the generality of the observations there made about expert evidence which accord with the perception gained in this court. Clearly this is a matter which has exercised the judge below. The judge below, who will be hearing the case next week, no doubt, has well in mind all the provisions in the rules relating to calling of witnesses and the necessity, where there is a genuine dispute as to evidence, of resolving that in a way which is satisfactory to all parties.

8. The order which the judge has made is clearly effective as of now, but it is clearly open to the judge, if he sees that it is necessary to resolve issues of fact, to allow the calling of witnesses for that purpose and the calling of specific witnesses. However, this is a matter of the control by the judge of the proceedings before him. That is what is commonly referred to as case management. Unless it can be shown that the judge has clearly erred and justice will not be done, it is not for this court to interfere with a judge's assessment of how a case should be conducted in front of him, how he should control his own court and how he should manage the case in front of him.

9. In this case, I have no doubt that if the judge sees it is necessary to have witnesses called, he will allow that to happen. But, the mass of what is proffered as expert evidence is likely, in my view, to be largely repetitive and there has been no apparent effort to distil what, if any, are the real disputes between the parties on that evidence.

10. In my view, the judge has taken a bold course and I am not satisfied that justice will not be done as a result of it. I am fully satisfied that the judge will see that justice is done between the parties.

11. In my view, this appeal should be dismissed.

Hon Godfrey VP :

12. I agree.