PAUL ANTHONY CLARKE AND ANOTHER v. THE SECRETARY FOR JUSTICE OF HONG KONG

HCPI 33/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 33 OF 1999

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REASONS FOR RULING

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1. The parties came before me on 11 December 2000 for a second pre-trial review hearing. There had already been an earlier pre-trial review hearing before Seagroatt J on 22 May 2000. After hearing the parties, one of the directions given by me was that leave was refused to the defendant to adduce into evidence the expert report of Mr Mark Joseph Shaw, an expert in the field of aerial photograph interpretation, employed by the Geotechnical and Engineering Office of the Hong Kong Government ("GEO").

2. The defendant has now indicated by letter, dated 27 December 2000, their wish to appeal against this direction and for me to give my reasons for that ruling which I now do.

3. The 1st plaintiff's claim is for damages for personal injuries and loss of chattels suffered by him as a result of a landslide which occurred in the early hours of 13 August 1995 at Nam Long Shan Road, Sham Wan after extremely heavy rains. The landslide in question buried the plaintiffs' shipyard under 15 feet of mud. The 1st plaintiff and two other persons were sleeping in the shipyard at the material time. The 1st plaintiff suffered personal injuries and witnessed the death of the other two in the shipyard as a result of the landslide. The plaintiffs' claim against the defendant is based (inter alia) on negligence. The particulars of negligence alleged by the plaintiffs against the defendant are varied and extensive. These allegations include failure by various government departments to properly maintain the roads, the catchments, the drainage, clearing blocked drains in the area of the landslide, which were all causes of the landslide that covered the shipyard in which the 1st plaintiff and the two other persons were sleeping. In the light of these allegations by the plaintiffs, the hydrology aspect, the topography as well as the geotechnical aspect of the area in question are made issues in this matter. Numerous experts will be called by both sides to deal with these matters.

4. One aspect of the plaintiffs' case is that the defendant knew or ought to have known of the propensity of a landslide occurring in that area under heavy rains because there had been two earlier occasions of landslips in the same area in 1988 and 1991. The 1st plaintiff further alleges that there were areas of soil erosion and/or loose land fill in the vicinity of an embankment along Nam Long Shan Road where the landslide occurred. It is the plaintiffs' case that aerial photographs taken after the landslips in 1988 and 1991 clearly showed areas of erosion and therefore the defendant knew or ought to have known of the loose fill in the area and the danger created thereby.

5. The findings of the GEO report prepared in 1996 resulting from the landslide in question accepts that the aerial photographs taken in 1988 and 1991 showed that there were areas of erosion. Indeed that was the stance taken by the defendant and all of its experts until the expert report of Mr Shaw. In his expert report, Mr Shaw, contrary to the opinion of all the other experts engaged both by the plaintiffs and the defendant, states that what everyone else had taken to be soil erosion was in fact illegal dumping shown in those aerial photographs. The expert report of Mr Shaw was made known to the plaintiffs' solicitors by the defendant in November 2000, shortly before the second pre-trial review before me. Up to that stage, neither party had engaged nor even indicated their wish to engage an expert on interpretation of aerial photographs. Not surprisingly, therefore, the plaintiffs objected to the reliance by the defendant of the expert report of Mr Shaw at the trial of this action on the grounds of its lateness. The plaintiffs have already engaged an expert, Mr K. Y. Lo, in this matter. However, he has no expertise in the field of interpretation of aerial photographs. When the report of Mr Shaw was disclosed to the plaintiffs by the defendant in November 2000, date for trial of this matter had already been set for 22 January 2001. The objection by the plaintiffs was put on the footing that if the report of Mr Shaw was allowed to be adduced into evidence by the defendant, the plaintiffs would need to engage their own expert in the interpretation of aerial photographs. Moreover, there does not appear to be another expert in the interpretation of aerial photographs available in Hong Kong and that the plaintiffs will have to look overseas for one such expert. Neither has the Legal Aid Department (the plaintiffs being legally aided) given its approval for such an expert to be engaged.

6. I was not told when it was exactly that Mr Shaw was asked for his opinion on these aerial photographs. Had it been much earlier than November 2000, then the fault lies with the defendant for not disclosing the report of Mr Shaw until November 2000. If, on the other hand, it had only been in November 2000, it was inconceivable that the GEO, with an expert in aerial photograph interpretation in their employ would not have sought his opinion earlier. The Writ in this matter was issued by the plaintiffs back in 1997. In any event, I took the view that the delay in bringing about this expert report of Mr Shaw rests with the defendant.

7. The trial date in this matter was fixed by Seagroatt J when the parties came before him at the first pre-trial review hearing on 22 May 2000. In July 2000, the plaintiffs made an application to Seagroatt J to have the trial dates pushed back to March 2001 because of the unavailability of their expert. This was refused by Seagroatt J on the ground that that application was too late since the trial dates were fixed two months before that application.

8. In like manner, I took the view that the defendant could and should have obtained the expert report of Mr Shaw well before November 2000. That would have allowed the plaintiffs sufficient time to engage their own expert in that area to meet the evidence of Mr Shaw. As it is to allow the defendant to adduce the expert evidence of Mr Shaw would, in all probabilities, delay the trial of this matter. The accident happened well over five years ago and the trial of this matter should not be further delayed.

9. In the circumstances, I refused leave to the defendant to adduce the expert evidence of Mr Shaw as contained in his report.