XCHRX CHO KAM CHUEN v. TSE CHI HUNG

HCPI 170/2000

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H E A D N O T E

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Expert Evidence - Road Accident Reconstruction Report - criteria for admissibility and expert opinion.

Expert Evidence - Duty of Legal Aid Department.

Expert Evidence - Counsel's and Solicitors' duty - consequences of waste of cost.

HCPI 170/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

ACTION NO. 170 OF 2000

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REASONS FOR DECISION

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1. This is another application for leave to adduce a Road Accident Reconstruction Report from an Engineer, in this case Dr Eric Lim of Safety, Accident and Failure Experts Limited, who was instructed on behalf of the Defendant's insurers. Although I gave my decision after hearing the submissions of Mr C. J. Lucas of Messrs T. H. Koo & Associates, the Defendant's Solicitors, in deference to his extremely lucid and succinct argument which displayed total grasp of the contents of the report, I agreed to set out my reasons in writing. Another reason for my so doing is that although there are numerous decisions in the English and Hong Kong's Courts in relation to what is termed expert evidence, as well as much judicial advice in the form of papers and lectures, the proliferation of reports and applications to adduce them suggests that little regard is being paid to the criteria concerned.

2. The scene of this accident is the north bound, one way Canton Road at its junction with Kansu Street which runs from right to left (i.e. east to west). It occurred on 24 January 1999 at about 6:00 a.m. Canton Road is divided into three lanes. Kansu Street is also one way and is divided into two lanes on the approach to the junction. The centre of the junction is hatched in the usual fashion. The junction is controlled by traffic lights. The Plaintiff was driving a light goods van along the inside lane of Canton Road to the junction. The Defendant was driving a saloon car along the offside lane of Kansu Street. They collided in the junction.

3. The Police evidence is to the effect that the traffic lights were functioning properly. Street lights were on and the junction was well-lit. The Defendant was breathalysed at the scene. A level of alcohol was recorded although this was below the prescribed limit. However he was convicted of careless driving, in the Magistrates' Court. The prosecution's case against the Defendant, and the Plaintiff's case in this action, are that the Defendant ignored the red light and entered the junction and struck the Plaintiff's vehicle when it was proceeding across in accordance with a green light. I do not propose to consider the contents of the Police Statements made by the Plaintiff, the Defendant and an independent witness who was in Canton Road on the south side of the junction outside no. 586, Canton Road whose attention was attracted by the noise of an engine followed by the sound of a collision. He saw the Plaintiff's vehicle spinning and said the traffic lights were green in favour of Canton Road traffic.

4. It is now necessary to consider the contents of Dr Lim's report in the light of the available evidence and the obvious issues.

5. The first part of his report is entitled "Observations from the supplied documents". This is no more than comment on the evidence on paper including a consideration of the Police Statements and plans and other reports. There is a cursory reference to the medical reports. The trial judge will have the same opportunity to consider this material supplemented and/or clarified by oral evidence and argument. There is no expert evidence in this section.

6. Dr Lim made a visit to the site. The purpose was to comment upon the range of visibility. A trial judge can make such a visit if necessary. It is more than likely that photographs will be adequate to deal with this issue if it becomes such. It is clearly not expert evidence.

7. There is then a substantial section headed "Discussion". The first part deals with point of impact and paths of the vehicles. It is peppered with what is "suggested" or "probably" occurred in order to suggest that the Plaintiff was "probably travelling in the middle lane of Canton Road". He makes a diagram of what he says was "the possible path of the vehicles". Whether that is a material issue is for the trial judge. In any event it does not require expert evidence to decide what lane the Plaintiff was travelling in before he entered the junction. The second part deals with Dr Lim's views of the pre-impact speed of the vehicles but his second sentence concludes "... make it difficult to accurately determine the speed at which the vehicles were travelling before they collided with [certain] objects." He then makes a number of assumptions one of which induces the phrase "it is difficult to determine the actual speeds from the available evidence," Speeds of vehicles in this accident is unlikely to be of significance. In any event the trial judge is able to make as good a general conclusion in relation to speed as any one else.

8. "The dispute regarding the Traffic Light Signal" is beyond expert evidence. It is unarguably a matter for the trial judge on all the evidence.

9. "Reactions of the Driver" is a hark-back to the section on his "Site Visit." These are findings of fact for the trial judge and do not constitute expert evidence. The last section is a short consideration of the seat-belt issue in the absence of any of the primary evidence necessary for the formulation of expert opinion.

10. The last sentence of the penultimate paragraph in this part concludes "it is very difficult to suggest how each injury sustained ... had occurred." His last sentence betrays the wrong approach. There was no examination of the seat belt to determine its condition.

11. His conclusions are none other than those within the fact-finding exercise of the trial judge. That relating to the question of the seat-belt is self-evidently devoid of expert opinion. He says the Plaintiff was either not wearing a seat belt or not wearing one properly. Without an examination of the seat belt amongst other matters, it would be impossible to determine whether it was worn or could be worn properly. Even if there had been such an examination it is impossible to say that it would positively have determined this issue.

12. My attention was directed to a publication entitled "Expert Evidence" (1993) by Frecketon & Selby, I had cause to consider part of this publication in the case of Man Ching Fuk v. Lee Sui Nam & Another (H.C.P.I. No. 1085 of 1998). It is clear that the engineer who seeks to put forward an expert opinion in the form of a Reconstruction must have regard to primary evidence. It says at 12-71 (Reconstruction Techniques)

It goes on to identify "obvious items of importance." Other material statements are

In relation to information concerning a vehicle's impact with another or roadside object, or seat belt usage and signs of occupant contact with the interior of a vehicle "it is convenient to discuss the elements of a systematic vehicle inspection in terms of an exterior ... and ... interior inspection."

13. The basic material available, as far as I can tell, was extremely limited. Dr Lim's report, with no disrespect to him, fell far short of the criteria which such a report must meet, in order to constitute admissible expert evidence. Moreover, given the evidence available and relevant issues in this case there is as I have indicated, no place for reconstruction expert evidence. The application is therefore dismissed with costs.

14. The Courts have increasingly had much to say about the misuse of expert evidence and the role that many experts seem to play as secondary advocates. A recent English Court of Appeal decision in a simple road accident (or running down action as the jargon of practitioners describes such) Liddell v. Middleton 1996 P.I.Q.R. 36, found Stuart Smith LJ - who in his days at the Bar was much involved with this aspect of Common Law practice - saying:

15. At an earlier part of his judgment (p. 42) he considers examples of those limited areas where expert evidence is both necessary and desirable to assist a judge in reaching his or her primary findings of fact. "What [an expert engineer] is not entitled to do is to say in effect, I have considered the statements and/or evidence of the eye witnesses 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." He later said:

16. This judgment should be read fully and carefully by all Counsel and Solicitors tempted to advise that such a report should even be obtained, let alone found the basis of an application to admit such evidence. It is just as applicable to running down actions in Hong Kong as it is to those in the United Kingdom and yet frequently the last-ditch argument of Counsel seeking to adduce such a report is that "some judges do not have sufficient experience of running down cases and need and would like the assistance of an expert engineer to help him find these straightforward facts." In my view no self-respecting Counsel should allow himself to take such a line of argument. In the Courts of Hong Kong there is no place for it. They should instead apply their minds to the test Stuart Smith LJ proposed at a later stage in the judgment.

17. In the same case Ralph Gibson LJ said the following (p. 44):

18. For Legal Aid Board, substitute Legal Aid Department in Hong Kong.

19. Hutchinson LJ in that case gave no separate judgment but on the matter of experts' reports "simply associate[d himself] in emphatic terms" with what the other judges had said.

20. Suffiad J in his judgment in Tong Ho Wing v. Wong Fuk (HCPI 1369 of 1999) dismissing an application similar if not identical to that before me made specific reference to that English Court of Appeal decision and after considering all the issues in his case added in forthright terms, "[Counsel] has not even begun to tell me how this case is an exception to the general rule, thus necessitating expert evidence."

21. In a paper entitled "Too Many Experts!" delivered to the Insurance Institute in London, the Rt Hon Sir Christopher Staughton (formerly Staughton, LJ), gave some examples illustrating "The need to restrict expert evidence when the parties do not have the sense to do it for themselves" before going on himself to consider Liddell v. Middleton.

22. I would respectfully add a few words of my own to the author's pithy statement which I have underlined. If Counsel or the Solicitor advises the obtaining of such evidence and seeks unsuccessfully to adduce it when such advice shows a lack of sense then he or she is not exercising the judgment which is supposed to be part of his or her professional calling and qualification. The consequence is that he or she has caused that cost to be wasted. Why should he or she not bear such cost rather than the hapless litigant who is entitled to rely on good judgment? This is not a question I would put to Mr Lucas in this case. In his concise argument he did not descend to the unsustainable arguments which I have heard.

23. I made some particular observations in relation to medical evidence in Wong Hin Pui v. Mok Ying Kit & Another (No. 2) [2000] 1 HKLR 1 856 at 874, the general tenor of which is equally applicable to experts' reports in other areas. Counsel and Solicitors must not abdicate their functions by seeking easy recourse to an expensive and irrelevant substitute for rational argument.