蕭炳雄 v. 仁安醫院有限公司

HCPI 82/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.82 OF 2006

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J U D G M E N T

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1. This is an adjourned hearing of the appeal from a master where the master refused to make certain orders in relation to discovery and witnesses.

2. I have heard the parties and have reached my conclusion on the 11 items covered by page 38 of the original bundle where the 11 items are listed.  I will deal with each item in turn.

3. In relation to item 1, it was a request for the original tape.  I first explain how the matter arose.  There was an accident at the car park of the hospital where the plaintiff was employed.  The plaintiff’s allegation is that as a result of his unhappiness or row with Mr Leung of the hospital, the hospital vehicle at the car park that he was supposed to drive that day went out of control, and as a result of which, he was injured.  He attributed the accident to the fact that the vehicle he was driving was tempered with by the hospital or by the employees of the hospital thereby causing his injury.

4. There was a security system in place at the hospital parking whereby there were video cameras capturing what was happening at the scene.  There was a master tape.  That master tape was given, or surrendered, by the hospital to the police, as a result the police being involved because of complaint being made to the police.  Arising out of that master tape, three other copies came into existence.  The first copy was a tape made by the hospital prior to surrendering the original to the police.  The plaintiff wrote to the police, and the police then give to the plaintiff a copy tape made from the master.  The plaintiff also obtained from the defendant a disk which was reproduced from the copy tape which the defendant had made prior to surrendering the master to the police.

5. So far as item 1 of the list of items on page 38 is concerned, this is the most important document, that is the master tape.  That master tape however, could not be effectively shown on any ordinary machine.  It has to be viewed at a place (some security room) which enables four screens to be shown at the same time.  I have directed that, perhaps the easiest way to resolve item 1 is to have a first viewing before the trial at some time to be arranged by the parties where we can all look at it together.  So that would be what is directed under item 1.

6. Item 2 is the defendant’s copy of the original which the defendant made prior to surrendering the master tape to the police.  There is no present necessity for the discovery of that to the plaintiff.  That copy, item 2, can be looked at at the trial.

7. Item 3 is the plaintiff’s copy tape given by the police to the plaintiff.  Again, if necessary, we can look at it at the trial.  No necessity for any order now.

8. Item 4 is the plaintiff’s disk given by the defendant to the plaintiff which is supposed to be a reproduction of the defendant’s copy tape.  Again, this disk is in the possession of the plaintiff.  If necessary we can again look at it at the trial.

9. So items 2, 3 and 4 are refused, item 1 would be the subject of our viewing together.

10. I now turn to witnesses.  This is by way of the request for subpoenas.

11. In relation to items 9 and 10, that is Mr Lee and Ms Bo of the hospital, witness statements are already in place and I have been informed by Ms Yeung that they would be called at the trial, so there would be no necessity for subpoenas for these two persons.

12. As to items 5, 6, 7 and 8, I believe it would be more sensible when we do the pre-trial review to look at the relevance of each of those persons for the purposes of the trial.  So I make no order now in relation to those persons under items 5 to 8.

13. Finally, in relation to item 11, having explained to the plaintiff that to have an expert witness called at a trial involves the following steps : first, an expert witness must produce an expert report; secondly the expert report would deal with a matter in issue in the pleadings; thirdly there would be application to court for that expert report to be given by way of evidence by the expert.  It is only when these 3 steps have been taken a court could be in a position to allow an expert to give expert evidence.  In those circumstances, as none of these steps have yet been taken, the court of course cannot possibly make such an order.

14. So this is my decision in relation to the appeal.  Therefore, except for item 1, the appeal must be dismissed.