LAM NGAU v. NEW WORLD FIRST FERRY SERVICES LTD

HCPI 693/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 693 OF 2007

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R U L I N G

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The Application

1.  At the Checklist hearing before me on 12 August 2009, the Plaintiff applied for leave to adduce the expert evidence of Mr. D.A. Boffey dated 27 November 2008 (“the Expert Report”).  The application was opposed by the Defendant.  I adjourned the matter for argument by the parties.

2.  The evidence by Mr. Boffey is on a liability issue, namely, whether the Plaintiff has maintained a safe working system.  His report touches on 2 areas: - Firstly, the weight of the mooring lines handled by the Plaintiff at the time when the injury occurred.  And secondly, the number of workers required in a safe working system to handle the mooring lines and whether a coxswain should be present.

The Law

3.  The application is taken out under section 58(1) of the Evidence Ordinance and Order 38 rule 4.  The legal principle in admission of expert evidence is not really in dispute.  The guiding criteria to grant leave to adduce expert evidence are necessity, relevance and probative value.

4.  And for an applicant to persuade this Court to admit medical expert evidence, as stated by Mr. Justice Fung in Farman Khan v. Lau Kai Hong and another HCPI 850/2008, “an application to adduce expert evidence must be supported by prima facie evidence of relevance”.  I believe the same principle applies with expert on liability.

5.  Further, as stated by Mr Justice Suffiad in paragraph 20 of his Judgment in Chan Kwok Ming v. Hitachi Electric Service Co. (HK) Ltd. HCPI 322/2002, during the interlocutory stage, the disputed report must only be “looked at on its face value, with the weight of the report being reserved to the Trial Judge”.

The Plaintiff’s case

6.  To understand the case of the Plaintiff, I have to start with some background and the pleaded case of the Plaintiff.

7.  According to the Re-amended Statement of Claim, the Plaintiff was employed by the Defendant as a sailor at the material time.  On 26 August 2004, the Plaintiff was summoned by the Defendant to go with 2 colleagues, one mechanic and one sailor, to the Hong Kong Shipyard Limited for taking delivery of the ferry which has just completed repair works in the Mainland.  The ferry was towed by a tugboat to the shipyard.

8.  When the ferry arrived, the Plaintiff and his colleagues had to arrange mooring lines for the mooring of the ferry.  Due to various reasons as set out in the Statement of Claim, there are 2 persons in charge of the mooring line, being the Plaintiff and one Law.  The Plaintiff was at the port side of the main deck and had to pass Law one end of the mooring lines and/or to tie the other end of the mooring lines on the bitts.

9.  Paragraph 13 of the Statement of Claim reads –

“In the course of the mooring of the ferry, the Plaintiff passed the heaving line of a plaited mooring line of about 4 inches diameter to Law; Law told the Plaintiff that he found the portion of mooring line was not long enough for him to attach the same to a bollard; under the circumstances, the Plaintiff had to haul and he hauled the mooring line so that he could pass another portion of the mooring line to Law; in the course of hauling the heavy mooring line the Plaintiff sprained his neck and back.”

10.  It is also the case of the Plaintiff that the mooring lines are heavy and the Defendant did not provide sufficient manpower to moor the ferry.  As a result, the Plaintiff was obliged to moor the ferry under unsafe circumstances, and/or that the Defendant failed to provide a safe system of work, including failing to provide proper information and training to the Plaintiff.

11.  The Plaintiff also pleaded breach of statutory duty on the part of the Defendant.

12.  It can be understood that the Plaintiff has to show the mooring lines are heavy.  At the hearing, on enquiry, I believe the actual mooring line on the date of accident could not be found or identified.  Mr. Boffey in his report commented on the weight of similar mooring lines.

13.  The second area for comment by Mr. Boffey is on the normal mooring procedure for ferries, in particular how to handle the mooring lines.  Paragraph 4 of his report gave a description of the procedure depending on the weight of the mooring line.

14.  Mr. Hung, counsel for the Plaintiff submitted that the Plaintiff complained the rope was too heavy for him to handle.  The Plaintiff could only tell by his estimate of the weight of the mooring ropes concerned.

15.  Mr. Hung further submitted that Mr. Boffey could give expert evidence on the relevant guideline of mooring.

16.  And I would take the weight issue first.

The Weight Issue

17.  Mr. Chan, solicitor of the Defendant submitted that the Defendant’s primary case is the incident as alleged does not happen at all.  As alternative, the Plaintiff’s allegations are denied.

18.  In respect of the weight of the mooring ropes, Mr. Chan submitted that Mr. Boffey’s expert evidence is limited to information extracted from the manufacturer’s data.  It may be a convenient time to look at paragraph 3 of Mr. Boffey’s report –

“The weight of mooring lines varies considerably with their composition and construction, with lines made using older technology and materials usually being cheaper and heavier then lines made using newer technology and materials.

The weight of lines can only be ascertained from data provided by the manufacturer ……”

19.  As mentioned above, the ropes in issue could not be identified.  And in accordance with Mr. Boffey’s view, the weight of mooring lines varies considerably.  His opinion is not to reflect the weight of the ropes handled by the Plaintiff at the material time.  I fail to see how this part of his evidence could be relevant to the case.

20.  If the Plaintiff is minded to give some samples of ropes similar to the one being used, and let the trial judge to have a feel of range of the weight of such ropes, I see no reason why the parties could not identify ropes of a few different brands and the weight per length could be provided by the data information of the rope manufacturers.  And after, if the rope could not be identified, it is the evidence of the Plaintiff that form the basis of the weight of the rope that he handled.

21.  Accordingly, my ruling is not to allow the expert evidence on the weight of the rope, as this is irrelevant.

How to Handle the Mooring Lines

22.  The second part of the opinion is on the safety system.  It is the Plaintiff’s case that the Defendant did not provide a safe working system.  Mr. Hung submitted that the opinion of Mr. Boffey is helpful and relevant to the issue if the Defendant has engaged a safe system of work.

23.  Mr. Chan submitted that the normal mooring procedure as commented by Mr. Boffey is a factual issue.  It is a question of fact as to how many crew members were present during mooring operations and/or how many mooring lines they have to handle.  And for the various guidelines and codes of practices set out in the report, the Court could come to a conclusion if the Defendant has been in breach without expert assistance.

24.  I do not agree with this argument.  Before the Court is to conclude whether there is sufficient number of sailors carrying out the operation, the Court has to rule on what is a safe working system, including the number of sailors required and whether there should be supervision of a coxswain.  These would be a matter for expert comment.  This involves evidence from someone who has special knowledge with mooring operation and work safety to express an opinion on how to moor a ferry.  And it is on the basis of such evidence when the Court could say that the Defendant has or has not maintained a safe system at work.

25.  In view of that, I found that an expert opinion on mooring safety would be relevant and helpful to the trial judge.  And at this stage, I only have to look at the report at its face value and do not have to consider how forceful is the evidence of Mr. Boffey, as this would be a matter for the trial judge. 

26.  Nevertheless, the report has to be amended to exclude the reference to the weight issue.  And there are a number of conclusions at the end of the report which the Plaintiff agrees to withdraw.  In the circumstances, the report has to be amended and I could look at the amended report again at the next Checklist hearing scheduled on 16 November 2009 before formally admitting the revised report.  And I understand the Defendant would wish to have leave to instruct their own expert to give evidence on mooring safety, which I must allow.  But since the report of Mr. Boffey has to be amended, I urge the parties to try to have a joint report.

27.  I have allowed part of the application and I give an order nisi that costs of the application be Plaintiff’s costs in any event.  This is not a complicated matter and I do not consider counsel’s assistance required.  I refuse certificate for counsel.  The Plaintiff’s own cost be taxed according to Legal Aid Regulations.