XCHRX MAN CHING FUK v. HO YUET MING t/a TSE LEE VEGETABLE WHOLESALE CO.

HCPI 1085/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1085 OF 1998

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J U D G M E N T

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1. This claim for damages for personal injuries arises out of a motor accident on 9 January 1997, nearly three years ago. The Plaintiff was travelling as a passenger in the Defendant's motor car. The Defendant lost control of his car as it rounded a left hand bend. The vehicle went onto the opposite side of the road and collided with a stationary commercial vehicle.

2. The Defendant had either fallen asleep or had simply been driving too fast; whatever the explanation his negligence caused the accident. He pleaded guilty to careless driving. The Plaintiff suffered appalling injuries. He is left quadriplegic, partially blind and with some cosmetic disfigurement.

3. In the Defence is pleaded inevitable accident caused by a dog running across the path of the vehicle. The evidence does not provide any substance for that. Against the Plaintiff, as an allegation of contributory negligence, is pleaded that he failed to wear a seat-belt. The odd feature of this allegation is that the Defendant alleges that the Plaintiff was either in the front seat or the back seat. The Statement of Claim had averred that the Plaintiff was in the front seat.

4. When I gave what were in effect the final directions for the trial of this action there was no evidence from the Defendants in support of their contention as to the non-wearing of a seat-belt as any causative factor in the Plaintiff's injuries. I had also, as long ago as the 23 April 1999 (four months before the hearing of the Pre-Trial Review), made an order that all expert reports be filed within 90 days i.e. by the 23 July approximately. None was filed by the Defendants in relation to liability notwithstanding that the plea of the First Defendant in his Defence was made in January 1999 and the insurers had notice of the proceedings with the Statement of Claim in October 1998.

5. On the 16th August 1999 almost one month after the deadline for expert reports, the Plaintiff took out an application to strike out the allegations in relation to the seat-belt. In effect this was an application to strike out the Defence in toto, because without that contention as to contributory negligence, the Plaintiff was entitled to judgment against the Plaintiff on the basis of full liability and the case could proceed to an assessment of damages. The Plaintiff's application was to be heard on the 6 September at the Pre-Trial Review.

6. The Defendants had no such expert evidence, as they required in order to support their contention, by the time of that Review. Nonetheless I allowed the Defendants until 22 September to file expert reports which they identified as coming from a Dr. Kan Yiu Ting and Mr Seymour-Hart. This was to enable them to mount a defence to the Plaintiff's application. It was not an open provision. Their failure to meet the timescale of the initial order was not satisfactorily explained. The adjourned hearing before me was to be heard on 24 September. In the event the Defendants met the deadline in respect of Dr. Kan's report but the 'final report' (whatever "final" means in this context) of Mr Seymour-Hart was filed late on the 23 September. As a consequence I had not had the time to read the reports (nor had the Plaintiff's counsel) the whole purpose of the deadline being to enable that to be done. Consequently I had to adjourn the hearing until the 5 November.

7. The issues are three fold. Where was the Plaintiff sitting and was he wearing a seat-belt? The third is, if he was not wearing a seat-belt would his injuries have been prevented or lessened to any extent by wearing a seat-belt. There is no dispute that the law requires the wearing of a seat-belt whether a passenger be in the front or the rear.

Issue 1

8. Was this Plaintiff in the front or the back seat? His averment is that he was in the front seat. In his statement to the police he said he was in the front passenger seat. He has consistently stated that in his statements taken by his solicitors for the purpose of this action.

9. The Defendant driver told the police in his statement that the Plaintiff was in the front passenger seat and his own brother was in the back seat.

10. The Defendant's brother, in his statement to the police, also says that the Plaintiff was in the front seat.

11. The owner of the vehicle with which the Defendant collided who was called to the scene saw three people in the car occupying the driver's seat, the front passenger seat and the rear seat. He did not specifically identify any individual.

12. Mr Seymour-Hart purports to reject this evidence on the strength of the following:

i) The photograph showing part of the Plaintiff (his upper body) lying out of the car, does not show the Plaintiff's feet in the passenger well.

ii) The Plaintiff had no injuries to his knees. The photograph purportedly showed the glove box of the front passenger region had been impacted most likely by the knees of the passenger. Therefore the front seat passenger would have had injuries to his knees. Only the Defendant's brother had knee injuries so he must have been the front seat passenger.

iii) The front seated occupants got out of the car and the rear seat passenger did not get out of rear doors. The photographs showed the front doors open and the rear doors closed.

13. These points and conclusions are so palpably lacking in logic and a consideration of other factors that I need not consider the points further. In any event they are not the content of expert evidence. This aspect is for the judge to determine as matters of fact.

14. I turn to Dr. Kan's approach.

15. The first point which strikes me as significant is the total absence of any statement as to Dr. Kan Yiu Ting's expertise in this field. There is no basis for him to be regarded as an expert in this field.

16. Secondly he relies substantially, if not wholly, on a vast amount of literature as supporting his contentions in this particular case. Since that literature does no more than support the argument for the wearing of seat-belts, which is uncontroversial and has found its objective in the legislation in different countries, including this Special Administrative Region, the basic arguments do no more than preach to the converted. On what does he base his argument that the Plaintiff was not in the front passenger seat?

17. The absence of any hospital record of injuries to the Plaintiff's knees, and the existence of damage to the "glove box area in front of the passenger seat" [Mr Seymour-Hart's interpretation of police photographs as a bald statement] indicates, says Dr. Kan, that the Plaintiff was not seated in the front passenger seat or that if he was, he was not wearing a seat-belt.

18. This is a somewhat na?ve approach for the following reasons. The Plaintiff sustained severe, probably life-threatening injuries. In his treatment the emphasis would have been upon his survival and the management of his severe spinal and head injuries. In such an emergency it is well-known that the hospital does not concentrate on minor injuries. In many cases before these courts, fractures of upper and lower limbs have been missed for some time in the essential treatment of the injuries to vital functions. When a seat-belt is worn it is not always that bruises are caused by it in such a collision.

19. There is a non-sequitur in his statement that because the "driver instrument panel and steering column push backward by collision" it suggests that the front passenger's knees would suffer injuries (whether belted or not). Alternatively he says the rear seat passenger had been thrown forward - in which case he would not have been restrained by a seat-belt. Dr. Kan is confused in both his thought and argument. In any event he puts this flawed concept into the context of "many cases".

20. He extrapolates a number of reasonable conclusions from a study by Huelke, and one by Dreghorn. These studies were based on a limited number of study samples. But the only overriding conclusion is that which we all know - it is safer in the back seat, and it is safer to be belted.

21. Despite the contemporaneous statements of the occupants as to the seats they occupied, Dr. Kan prefers to rely upon some dubious hospital comments as to the seating of the occupants. As if to lend some force to the conclusion he ultimately seeks to draw, he goes on to make what I regard as an astonishing statement for someone holding himself out to be an expert in deducing sitting positions from injuries, or the lack of them, and an interpreter of the reliability of what anyone said to someone else at a material or non-material time:

"Since all occupants of the crashed car suffered concussion with various duration of Post-Traumatic Amnesia, each of them is entitled to rescind on any account they gave shortly after the accident."

All these matters are factual matters for a judge to decide. They are well outside the ambit of expert evidence and at this stage the more logical question to pose is what interest have any of the persons in the car in putting themselves in a seat which he did not in fact occupy immediately after the accident. There has never been any dispute as to who was the driver.

22. Dr. Kan goes on to state that whilst the various injuries of the Plaintiff are compatible with being a front seat passenger, belted or unbelted, he relies upon what he regards as the absence of knee or lower extremity injuries as enabling him to suggest that he was in fact a rear seat passenger. He relies upon Mr Seymour-Hart's description of the glove-box area damage on the passenger side deduced from a police photograph.

23. Again he states that the pattern and severity of the Plaintiff's injuries are perfectlycompatible with an unrestrained rear seat passenger. In both cases I have underlined the expression "compatible with". It is an equivocal expression and an experienced professional well knows that. He adds "The police picture which showed the victim lying on the front seat might be the result of him being flown over from the rear (with the original occupant having alighted as he was only mildly injured)." Again the underlining is mine. This of course postulates an immediate post accident scene which ignores the evidence of Chan Kan Fat, the owner of the parked vehicle struck by the Defendant's car.

24. Dr. Kan's report is of a highly speculative nature scarcely tinged with expertise in relation to the matters outside his immediate professional experience.

Issue 2

25. Both he and Mr Seymour-Hart go on to postulate that the Plaintiff was not wearing a seat-belt, a point so inextricably linked with their contentions concerning the seat occupied by the Plaintiff, that their hypothesis is flawed from the outset and I detect no expertise in their consideration of the material, their argument or their conclusions. All these matters are for the judge to determine in any event, if they are relevant. They only become relevant if it can be shown that the Plaintiff did not wear a seat belt. If that were to be the case what is the expert evidence to show that the non-wearing of a seat-belt contributed wholly or in part to his injuries? Although I would not have thought it necessary to state this, it is not a presumption that the failure to wear a seat-belt caused wholly or in part the injuries in a given case.

26. Neither has given any consideration to the possibility that the seat-belt fitted to the rear, or to the front, was damaged, or ineffective in a material respect. Of course they could not give a positive opinion one way or the other because neither had inspected (or been able to inspect) the seat-belts in the vehicle. Nor had either even considered the postures which might have been adopted by the Defendants brother, or the Plaintiff, if, as they contend as some stage, they fell asleep before the accident. I find this strange to say the least, in view of the fact that I am asked to regard the reports as proceeding from an expert source.

Issue 3

27. Froom v. Butcher [1976] 1 Q.B. 286 is the classic statement of the approach to be adopted, the decision of the English Court of Appeal having been preceded by much debate, judicial obiter dicta, and finally research evidence which showed that injuries were more likely to be prevented or reduced by the wearing of seat-belts. This was the rationale of the legislation which led to the statutory requirement that front seat-belts, and ultimately rear seats-belts, be fitted and used. Citizens were told that it was in their own interests and misplaced notions of interference with their liberty were at least in terms of legal requirements, laid to rest.

28. At p.296 Lord Denning makes it clear what is required to resolve the issue (B-C):

"Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seat-belt had been worn. In such case the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat-belt had been worn. But often enough the evidence will only show that the failure made a considerable difference."

It is quite clear from the repeated criteria which I have underlined, what the court has to have.

29. This accident occurred nearly three years ago. No doubt the Defendant or his insurers, who represent him in this action having instructed solicitors in accordance with the terms of the policy, have scrapped the vehicle. The two gentlemen instructed did not inspect the vehicle. There are no photographs taken by an expert engineer skilled and cognisant in the field of accident reconstruction, and none taken on his instruction and guidance. There was no examination of the state, style and effectiveness of the seat-belts (whether in the front or back seat). It is impossible to advance other than on a speculative basis any valid arguments let alone opinions when the primary material has not been examined. The Defendant's insurers had the opportunity, had they so wished, and thought it necessary, to preserve such material so that an equal opportunity could be afforded to the Plaintiff's advisers. It is no use their saying we did not receive the Writ and/or Statement of Claim until later. They had all the means at their disposal to prepare themselves on this aspect. They have not done so. The Plaintiff has no means now of looking at the evidence to be able to provide an authoritative opinion.

30. My attention has been drawn to a publication entitled "Expert Evidence" by Freckelton and Selby published in 1993. It has a section on Traffic Accident - Investigation, Analysis and Reconstruction. It sets out the primary materials for examination. It is a helpful statement of the essentials for the basis of an expert opinion. It is apparent from this how inadequate, unhelpful and inexpert the report of Mr Seymour-Hart is. It shows by clear implication how far a purported expert can go, and where, by inference, he must hold back from advancing an "expert" opinion.

31. I would have refused the Defendants leave to adduce expert evidence (assuming the reports constituted such) in any event by reason of the fact at this late stage the Plaintiff has no opportunity to obtain a report which in any event can only be on a speculative basis. The Plaintiff has no opportunity to examine the primary evidence.

32. But the Defendants failed to meet any of the deadlines set for such reports. I made my order on 23 April giving the parties a comfortable timescale. In the event the reports were filed after five months. In view of their content, it is difficult to see why such a length of time was necessary. Mr Seymour-Hart's report is 25 pages in length. The bundle he provided which included a mass of unnecessary material was 3 or 4 times that quantity. Page after page of his report was nothing other than a wholly unnecessary regurgitation of material. The reader was also treated to two pages of the Road User's Guide and Road Traffic (Safety Equipment) Regulations. The material content, in the sense that it formed that which the Defendants contended was admissible expert opinion, was approximately two pages in length. I do not know when he was instructed to prepare a report. The Defence was served in January 1999. If such a report had not been sought before, when the allegation had been made in October 1998, then it should have been sought five months ago at the latest.

33. Therefore for sheer dilatoriness alone, as well as for the inexcusable failure to comply with the court's clear-cut timetable, leave to file such reports, and adduce such evidence is refused.

34. I have, however, been able to consider these reports on a broader as well as a specific basis. To elevate their flawed and entirely speculative hypothesis to the status of expert evidence would, in my view, be a travesty (though I accept that the gentlemen concerned are experts in their own specific qualified fields of automobile engineering and neuro surgery) and render relevant and therefore admissible, any hypothesis culled from, at best, a mish-mash of secondary material which in the event calls only for straight forward assessment and conclusion or inference. None of it will meet the requirements of evidence as set out in Lord Denning's statement.

35. The Plaintiff's application to strike out that allegation of contributory negligence will be allowed. Such allegation can only be sustained by expert evidence which meets the requisite criteria. There is none, and cannot now be any. The Plaintiff shall have his costs of, and occasioned by, the application, and necessary hearings. Judgment will accordingly be entered for the Plaintiff for damages to be assessed. Order 18 rule 19 also applies.