FONG SAI HO v. HARIFAST CO LTD AND OTHERS

HCPI 1199/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1199 OF 2003

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R U L I N G

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Introduction

1.  The courts lean against the admission of expert evidence in running down cases concerning the “reconstruction” of the road traffic accident which has given rise to the action.  Equally, they usually will not admit evidence from an expert as to whether a Plaintiff was wearing a seat belt in the vehicle that he was travelling in at the time that he was injured.  This is what the 1^st and 2^nd Defendants are applying to do.  As to the reconstruction of the accident, with particular emphasis as to the speed of the 3^rd Defendant’s vehicle just prior to the accident, this is objected to by the Plaintiff and the 3^rd Defendant.  As to whether the Plaintiff was wearing a seat belt the Plaintiff objects and the 3^rd Defendant adopts a neutral stance.

Outline of the case

2.  The case concerns a high speed collision between a coach owned by the 1^st Defendant and driven by its employee the 2^nd Defendant and a taxi driven by the 3^rd Defendant.  The Plaintiff and his girlfriend were rear seat passengers in the taxi.  As a result of the collision the Plaintiff suffered very grave spine injuries which have rendered him paraplegic.  He will be confined to a wheel-chair for the rest of his life.  The damages claimed are a little short of 20 million dollars.  On any view therefore a very substantial claim the outcome of which will have very far-reaching consequences for all four parties.

3.  Briefly stated, the facts appear to be these.  The accident occurred at about 6.30 am on the 18 September 2002.  The taxi was travelling on the inside lane of Kwun Tong Road in an easterly direction (towards Kwun Tong).  The speed limit there was 70 kph.  The collision occurred just after the slip road from Clearwater Bay into Kwun Tong Road from which the coach had entered Kwun Tong Road and entered the lane of Kwun Tong Road in which the taxi was travelling.  The case against the coach is that it had entered the taxi’s lane when it was unsafe to do so having regard to the approach of the taxi, thereby giving the taxi no time to brake or take evasive action, with the result of the taxi collided into the rear of the coach.  Stated in that way the accident would appear to raise no factual complexity which would cause a judge trying the matter to have to look to the assistance of experts to help him resolve the issues that he would need to in order to decide the case.

The apparent issues

4.  The trial judge will have to determine, as best he can, the distance between the coach and the taxi at the time that the coach began to encroach into the taxi’s lane, at which point the taxi driver would have been called upon to take steps to avoid a collision by a combination of braking and/or, if he could in the circumstances, steering into the lane immediately outside the lane that he was travelling in.  The prospects of his doing that successfully would largely have depended on the speed that he was travelling at when the encroachment began, having regard to his position relative to the coach.  The faster that he was travelling the less chance he would have had to brake effectively or take evasive action.  The other issue, which relates only to whether the Plaintiff should suffer a reduction in his damages, concerns the state of the evidence as to whether the Plaintiff was wearing his seat belt at the moment of impact.  I need to give separate consideration to these two matters.

The proferred expert evidence

5.  The 1^st and 2^nd Defendants wish to call Professor Murray Mackay, an undoubted expert in accident reconstruction.  His report on the course of the collision and of the taxi’s speed as it approached the point of impact and upon impact appears at divider 3 of the 1^st and 2^nd Defendants bundle for this application.  I propose to take the accident reconstruction report first.  His methodology appears in his introduction at page 1 of the report.  This involves reviewing the available evidence and then working backwards from the final position of the vehicles to assess their immediate post-impact speed.

“

… the nature and severity of the collision needs to be assessed, based on the severity of the structural damage and the motions of the vehicle during the impact stage to arrive at a change of velocity for each vehicle.  From that part of the analysis the immediate pre-impact speed can be assessed.  Then if there is evidence of pre-impact braking, the approach speed of each vehicle can be addressed.”

6.  Conforming with this process Professor Mackay carefully goes through the evidence that has been made available to him.  This appears in Appendix 1 (page 9) to the report and includes much if not all that one would expect to have been made available to him given the passage of time between his instruction and the accident, a lapse of about 2 years.  This includes pleadings, witness statements, police sketch plan and photographs showing the accident damage to the taxi and the coach, the taxi skid marks and the local weather report at the time.

7.  Professor Mackay’s report is there to be read.  I don’t propose to rehearse its contents save to observe that he has dealt with everything that he could possibly look at in coming to an opinion as to the taxi’s approach speed of between 86 and 102 kph with an impact speed of between 65 and 85 kph.  This the 1^st and 2^nd Defendants would wish to have admitted to, inter alia, counter the 3^rd Defendant’s evidence that he was travelling on the speed limit of 70 kph.

8.  As to the nature of the collision Professor Mackay suggests that, having regard to the nature of the “engagement” of the front of the taxi under the skirt of the coach and because of damage also caused to the rear of the taxi, the forces of the impact caused the taxi to describe a rotation before coming to its final position.  This latter feature contradicts a conclusion by Dr Lingard, an expert retained by the 3^rd Defendant, who suggests in his report that a third vehicle must have been involved and it is this vehicle that caused the rear damage to the taxi and may have propelled the taxi into the coach.  Dr Lingard in one of his two reports has also attempted to come to an estimate of the taxi’s approach speed and the speed at impact but, very fairly in my view, feels unable to come to any firm conclusion because, in his opinion, it is not possible to have;

“	… a basis for knowledge of the taxi’s speed at its first impact with the coach …”

Although he feels able to say that it is;

“	… quite possible for the accident … to have happened as it did if the initial speed of the taxi was in the region of 70 kph.”

This he says for reasons which appear in his report.

9.  Mr Reeves for the 3^rd Defendant is making no application to have Dr Lingard’s report admitted but, quite reasonably, submits that if I let in Professor Mackay then he should be allowed to deploy Dr Lingard, another highly qualified and experienced man in this field.

The authorities

10.  Before I rehearse the arguments for and against admissibility it is essential to consider the court’s approach to these types of report in running down cases both in Hong Kong and in England and Wales.

11.  The benchmark has been established by Stuart-Smith L.J. in Liddell v Middleton (1996) PIQR 36, which was also a road traffic case.  The judgment 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 L. J. 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 falling 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.”

12.  I have also been shown a number of cases in Hong Kong where those sentiments have been approved and applied.  In all these cases applications to have such evidence admitted were rejected and rejected in the strongest possible terms on their particular facts.  I do not propose to make specific reference to these cases because it is the principle which I need to apply to the facts of this case and that principle is to be extracted from Liddell v Middleton.

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

The argument

14.  Mr Ozorio S.C. for the 1^st and 2^nd Defendants draws attention to the size of the claim as a feature in this case which, if not demanding, certainly makes it highly desirable for each party to be able to deploy all evidence that will assist it in the presentation of its case.  In my view that is a proper observation.  Whilst admissibility is an immoveable concept; what is inadmissible in a small case does not become admissible in a substantial case just because it happens to be substantial nevertheless, the court cannot be insensitive to the consequences of the judgment to the parties in a case such as this which involves a big claim, where as I understand the principles, admissibility of such evidence involves a large element of judicial discretion.  The effect of this is that perhaps in a case involving a smaller claim and, of course, having proper regard to the likely evidence and the issues arising from that evidence, the court may be less inclined to admit an expert’s opinion having regard to the cost-benefit involved.  As Stuart-Smith L.J. had observed in Liddell v Middleton evidence of this sort will inevitably add to the length and therefore the expense of the action.  The more marginal the assistance to be derived from the expert the less inclined the court would be to let him into the case.  A very familiar judicial balancing exercise therefore will be involved.

15.  That having been said it seems to me that the evidence and the issues which come from it will always be the primary consideration on admissibility.  No amount of damages claimed will make an expert’s evidence admissible “unless the evidence is both necessary and desirable in road traffic cases to assist the judge in reaching his or her primary findings of fact”; per Stuart-Smith L.J. supra.  He gave as an example cases where there were no witnesses capable of describing what happened and deductions may have to be made from circumstantial evidence as there may be at the scene.  Although I have not repeated in full the passage where this appears in his judgment I have the whole of that passage in mind.

The evidence and the issues

16.  It is to this that I must now primarily attend.  No amount of expert evidence is going to tell the trial judge, to anything approaching precision the approach speed of the taxi nor its impact speed.  Professor Mackay can only suggest a broad range of speed based on the circumstantial evidence created by the collision.  It must always be remembered that the resolution of the various liability issues involved in a running down action will, and can only, be the product of a broad appraisal of the evidence by the judge and, as best he or she can, make the necessary findings of fact based on that broad appraisal.  In my view the judge in this case will want to try and establish as best he can the distance of the taxi from the Clearwater Bay slip road as the coach began to encroach into the taxi’s lane which created the emergency which the taxi had to react to by braking and/or taking such evasive action as may have been reasonably available to the taxi driver in the circumstances.  I would have thought that the very severe damage to the taxi and the skid marks would indicate that it was travelling at considerable speed.  The length of the skid marks, both straight-line and curved, will provide the trial judge with fairly reliable evidence as to the location of where the taxi driver first saw the coach enter his lane.  To this the judge will need to add an element for reaction time before which the driver came on to his brakes.  The judge will also factor in that at 6.30 am traffic would have been light and the straightness of the road together with its width would have provided an incentive for the taxi driver to exceed the, in those circumstances, relatively modest speed limit of 70 kph.  All these features will, I would have thought, provide the judge with the necessary evidence to come to a perfectly adequate and sensible conclusion on speed and distance from the slip road, necessary for him to decide whether it was negligent of the coach to attempt to enter the taxi’s lane when it did.  It will also amply provide sufficient material for him to decide to what extent, if any, the taxi contributed to this bad collision, by driving too fast in all the circumstances.  When viewed in this way, and, in my judgment, this is the way to analyse the matter, the court will be able to arrive at proper conclusion on the evidence and the issues raised in the parties pleaded cases.

17.  Given the limitations placed on Professor Mackay, with the result that he cannot be more precise than the range of speed that he has given I do not see how he can provide material which the trial judge cannot do for himself on all the evidence that will be available to him.

18.  Mr Ozorio has additionally submitted that where the coach driver cannot say anything himself as to the taxi’s approach speed and the manner of the collision that it would be just to allow him at least to be able to use Professor Mackay’s evidence, particularly, in a case involving such a large claim.  Whilst that may be so, whoever is representing the coach driver will have all the other evidence which I referred to in order to make out a very respectable case, I put it no higher, as to the taxi’s approach speed which is fundamentally important.  The judge will be able to interpret all that evidence perfectly well himself.

19.  For all these reasons I am not deposed to let in expert evidence of this sort in a forensically straightforward case on liability and on contribution as between defendants, if that were to arise.

The Seat belt issue

20.  Professor Mackay and Dr Chu, an orthopaedic surgeon, have put in reports suggesting that the Plaintiff was not wearing a seat belt at the moment of impact.  Conventionally, the non-use of a seat belt will reduce damages by between 20% and 25%.

21.  Mr Sakhrani’s objection to this is that the evidence of these two witnesses will never rise above the point of speculation and will therefore be valueless to the judge.  It will add nothing to all the circumstances of the accident from which the judge will assess whether or not a seat belt was being used by the Plaintiff.

22.  It is a fact that the Plaintiff did not have any marks across his lap which might have indicated that he was wearing a seat belt and which would have caused such marks as he was propelled forward by the force of the collision.  On the other hand, says Mr Sakhrani, nobody bothered to check the buckle of the seat belt to see if it was functioning properly.  In this regard, I am even more certain that the judge will have no need for outside “expertise” to assist him on this issue.  He will decide having regard to all the evidence.  The oral evidence of the three witnesses who can speak to this, the nature of the Plaintiff’s injuries and how they were caused – the photographs of the inside of the taxi will assist him – the fact that the other occupants, who were incontestably strapped in with their seat belt, were only slightly injured will also help him on this issue.  He will be well able to decide the mechanics of the Plaintiff’s injuries and then assess the question of whether a seat belt was being used by him at the time.  So for all of these reasons I decline to admit expert evidence for this purpose.

Costs

23.  This has been a discrete issue, albeit in the course of the PTR.  The 1^st and 2^nd Defendants have failed and I would have thought that they must pay the Plaintiff and the 3^rd Defendant’s costs in any event with certificate for counsel and legal aid taxation of the Plaintiff’s costs if that is applicable.  This order for costs will be an order nisi.

24.  As to the other directions on the PTR I am told that these are likely to be agreed and so I give the parties liberty to apply in case that agreement is not possible after all.  The parties have estimated, and I agree, that if expert evidence is not admitted 6 or 7 days is an appropriate estimate for the length of this action.  In the circumstances, and to be on the save side, I will say 7 days.  I appoint, as the parties have asked me to the earliest possible dates for trial being 24 April to 3 May 2006.