CHAN WAI YING v. SIN KIT SANG AND OTHERS

HCPI 805/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 805 OF 2006

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D E C I S I O N

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1. This is my Decision on the Application by Messrs Hoosenally & Neo, the solicitors for the 3^rd and the 4^th defendants for leave to adduce 2 expert’s reports compiled by Professor McKay.  One report relates to the seatbelt issue, and the other relates to liability.

2. The application is resisted by the plaintiff and by the solicitors for the 1^st and the 2^nd defendants.

3. This action arises out of a road traffic accident on 25 July 2004.  The deceased was a 46 year old contractor who had boarded the 3^rd defendant’s taxi just before the Lamborghini driven by the 1^st defendant ploughed into the side of the taxi, as the taxi was making a U-turn.  The deceased sustained serious injuries and died soon after.

4. By Paragraph 4 of the Order on Check List Review dated 17 April 2007 all the documents relating to the trial of the 1^st defendant in the Magistrates’ Court including the Admitted Facts Exhibit P1 were directed to be available at the trial of this Personal Injuries action.

5. Briefly stated the circumstances of the accident are as follows.  The deceased boarded a taxi driven by the 3^rd defendant outside Queen Elizabeth Hospital on Wylie Road around 2:15 am in the early hours of 25 July 2004.  The 3^rd defendant then made a U-turn.  The Lamborghini driven by the 1^st defendant crashed into the right flank of the taxi.  At the time of the collision, the deceased was not wearing a seat belt.  The driver of another taxi JU5857 stopped nearby witnessed the accident. 

6. The admissibility of expert evidence is governed by section 58 of the Evidence Ordinance, Cap 8. Section 58 provides:

“	58.	Admissibility of expert opinion and certain expressions of non-expert opinion
		(1)	Subject to any rules, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.”
		(2)	Where a person is called as a witness in any civil proceedings a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
		(3)	In this section “relevant matter” includes an issue in the proceedings in question. ”

7. As was explained by Stuart Smith LJ in the famous case of Liddell v Middleton, 1996 PIQR 36, that section of the legislation “in no way extends the principles upon which expert evidence is admissible.”  His Lordship went on to say that “An expert is only qualified to give expert evidence on a relevant matter, if his knowledge and expertise relate to a matter which is outside the knowledge and experience of a layman. And the reference to an “issue in the proceedings in question” relates to a factual issue and not to the conclusion of law based upon such fact.”

8. The case of Liddell V Middleton was quoted with approval by Mr Justice Seagroatt in Cho Kam Chuen v Tse Chi Hung, HCPI 170/2000.

9. The procedural aspects of Order 38 r36 of the Rules of the High Court will apply to preclude expert evidence, see 38/36/1 at page 644 of Hong Kong Civil Procedure 2007.

10. An authority in the area of admissibility of expert evidence which provides a helpful summary is the judgment of the Mr Justice Suffiad in Chan Kwok Ming v Hitachi Electrical Service (HK) Ltd, HCPI 322 of 2002.  The judge sets out the proper criteria to be applied to determine whether any expert report can and should be admitted in evidence in paragraphs 20 to 27, explaining how the elements of relevance, necessity and probative value are to be applied. 

11. In summary therefore, in the application of the relevant principles on whether to give leave to adduce evidence of expert witnesses, the following matters must be considered: (a) whether the proposed expert witness has the requisite qualifications; (b) whether his “knowledge and expertise” is outside the knowledge and experience of the layman, i.e. will his evidence be “relevant” within the meaning of Liddell v Middleton; (c) whether the expert’s evidence will only “relate to a factual issue and not to a conclusion of law based upon such fact” within the meaning of Liddell v Middleton; (d) Whether the applicant complied with the procedure set out in O38 r36; and (e) Whether the applicant has shown that the “expert evidence” is “necessary”, “relevant”, and has “probative value” within the meaning of the Judgment in HCPI 322 of 2002.

12. Miss Masood, the solicitor for the 3^rd and 4^th defendants described Professor McKay as “an expert road traffic engineer” who will “advise on the technical aspects of this case which were dealt with by the Government Forensic Scientist Mr Kwok Nai Chiu as part of the police investigation”.  Miss Masud submitted that Mr Kwok’s report and his evidence “contained a good deal of scientific and technical points that a lay person is not able to follow”, therefore it will be necessary for the court to give leave to adduce the two reports compiled by Professor McKay, both dated 17 February 2007.

13. I shall deal with Professor McKay’s report on the seatbelt issue before dealing with his report on the liability issue.

14. Ms Masood submitted that the court would require assistance in determining the issue of whether, had the deceased been wearing a seat belt, he would have suffered much less or no fatal injuries, or any injuries at all.

15. Although the report contained impressive sounding words such as “kinematics”, which, according to the Shorter Oxford Dictionary means “the branch of mechanics dealing with pure motion, considered without reference to objects in motion or the forces acting on them”, the report is no more than the application of common sense on a given set of circumstances.  The court does not need a witness to explain that a person not wearing a seat belt would probably receive more serious injuries than a person safely buckled up.  The report does not deal with the seatbelt issue in the manner advocated in HCPI----/--.

16. It is rather ironic that whilst Ms Masood criticized the report of Government Forensic Scientist Mr Kwok Nai Chiu, Professor McKay based his theory on the seatbelt issue on Mr Kwok’s finding of evidence of contact between the deceased and the taxi.  Professor McKay quoted from Mr Kwok’s report, and said that there was “evidence of a head contact was found by Mr Kwok on the beneficiary pillar (the pillar between the front and rear doors) and on the door window frame of the rear right door.”  See paragraph 5 on page 2 of the report at page 286 of the Bundle.

17. Based on that evidence of contact with the interior of the taxi, Professor McKay built up his argument on the seatbelt issue.  That piece of evidence showing points of contact between the deceased and places inside the taxi would have been available to the trial judge without the McKay report.  There is no reason why the trial judge cannot apply his common sense in the same manner as the Professor.  Moreover, it has not been shown that the contents of the report relate to anything “outside the knowledge and experience of a layman”.  It is not outside the knowledge and experience of a layman that a person not wearing a seatbelt would probably have hit his head against the window frame and the pillar between the front and rear doors.  It is not outside the knowledge and experience of a layman that a person not wearing a seatbelt would probably have sustained the laceration to his liver when the right side of his body was thrown violently against the door.  For all the reasons given, I find that the criteria of “relevance”, “necessity” and “probative value” are not met, and decline leave to adduce the report dealing with the seatbelt issue.

18. Before leave the seatbelt issue I should add that it may not be in the 3^rd defendant’s interest to pursue the seatbelt matter.  It was common ground that the deceased was not wearing a seatbelt because he had only just boarded the taxi, and that the Lamborghini crashed into the side of the taxi as the 3^rd defendant was executing the U-turn.  There was no evidence that the 3^rd defendant, the driver of the taxi ever attempted to ensure that his passenger was buckled up before he manoevured his taxi so that it straddled across Wylie Road.  Since the law permits a taxi driver to refuse to convey any passenger who does not buckle up, it may be argued that there must a duty on a taxi driver to check that his passengers comply with the seatbelt law before he starts to drive off.

19. I turn now to the McKay report on liability.

20. Ms Masood relied upon the case of Liddell v Middleton CA [1996] PIQR P36 for the proposition that the circumstances of this accident should be regarded as an exceptional case where an expert’s evidence on liability should be allowed.  The passage relied upon is on P42 and is as follows:

“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.  xamples 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 the deductions are to be drawn from the position of the vehicles after the accident, marks on the road, or damage to the vehicles, as to the speed of the 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 on 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.  hat he is not entitled to do is to say in effect “I have considered the statements and/or evidence of the eyewitness 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.”  hese 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.  till 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 failing to take some other action, a party was guilty of negligence.  hese are matters for the court, on which the experts’ opinions are wholly irrelevant and therefore inadmissible.”

21. Ms Masood purported to rely on the above passage from Liddell v Middleton when she submitted that “this is an extraordinary case in that a quasi-racing machine was involved and that there was no eyewitness evidence to the exact speed of the Lamborghini, and therefore one must engage an expert to advise as to speed”.  Furthermore, “given that the analysis of Mr Kwok was inaccurate as pointed out by Professor McKay, the trial judge would derive great assistance from Professor McKay’s report.”

22. With respect to Ms Masood, there were several eyewitnesses who could and did give evidence in the Magistrate’s Court as to the speed of the Lamborghini.  The only failing in the 3^rd defendant’s view is that those witnesses could not and did not give the exact speed of the Lamborghini.

23. I do not think that it is necessary for the trial judge to have a witness calculate the exact speed of the Lamborghini in order to decide on the issue of negligence.  Aside from the transcript of the trial in the Magistrates’ Court, the salient facts of the circumstances of the locus quo is succinctly set out in paragraph 13 of the Admitted Facts. It states:

“The scene is on an undivided road with one 4m wide lane each bound (north and south). There is a 3.9m wide bus-stop lay-by on the northbound lane. Between the junction with Gascoigne Road in the south and the accident scene, the stretch of the road is relatively straight and relatively level. The distance between the two points is about 350m. Line of sight is direct with no physical obstruction.”

24. Armed with the information provided by paragraph 13 above, the trial judge will know that, the taxi driver would have had an unobstructed view of a distance of about 350m if he had looked in the direction of the on-coming Lamborghini.  If the taxi driver had looked in that direction to check on-coming traffic, he would have made a calculated decision whether to execute the U-turn.

25. I am of the view that the trial judge, armed with all the materials from the Magistrates’ Court and with all the oral evidence of the witnesses, will be in a position to decide whether the taxi driver was negligent when he made that U-turn, thereby placing the flank of his taxi directly in the path of the Lamborghini.  Furthermore, the trial judge will only need to work out the approximate speed of the oncoming vehicle when the taxi started the U-turn. Knowledge of the exact speed of the Lamborghini will not be necessary in the circumstances, as there is also information of the locus in quo in the form of sketches, photographs, agreed distances and the evidence of several eyewitnesses.

26. I need not comment on the accuracy or otherwise of Mr Kwok’s report.  That report is not relied upon by any other party to this action as their expert report on liability.  Mr Kwok’s report will merely form part of the materials from the Magistrates’ Court action that will be available for the perusal of the trial judge in this personal injuries action.  Should the 3^rd and 4^th defendants find it necessary, their counsel can submit on the inaccuracy and/or unreliability of that report at the trial.  

27. For all the reasons given, I dismiss the application by the 3^rd and 4^th defendants to adduce the reports compiled by Professor McKay both dated 17.2.07 on the seatbelt issue and on the liability issue.

28. Costs should follow the event, so there will be an Order Nisi that the 3^rd and 4^th defendants should pay the costs of this application of the plaintiff and the 1^st and the 2^nd defendants.  This costs order shall be made absolute within 14 days of the handing down of this Decision.