SZETO WAI SUN v. BIKRAM’S YOGA COLLEGE OF INDIA LTD formerly t/a BIKRAM’S YOGA COLLEGE OF INDIA

HCPI 499/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 499 OF 2007

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J U D G M E N T

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Introduction

1.  This is an appeal from Master Kwan’s refusal to allow the Plaintiff to call expert evidence at the trial of his action for personal injury.

2.  The Plaintiff is a practising solicitor who had signed up to a course of yoga lessons at the Defendant’s premises at Hankow Road, Tsim Sha Tsui.  The type of yoga that he was learning is known as Bikram Yoga, named after Mr Bikram Choudary, its creator, which involves adopting 26 different poses or postures over a 90-minute session.  Its particular feature, certainly so far as this action is concerned, is that the temperature at the yoga studio needed to be raised to 40^o centigrade, which of course caused the participants to perspire profusely, which aids the process of detoxification through the loss of fluid and which, combined with the stretching required to perform the 26 poses, is apparently very good for you.

3.  In order to decide the appeal, it is essential to understand how the plaintiff says that he was injured and to have close regard to the issues raised in the pleadings.

4.  This all occurred on 4 May 2005.  The Plaintiff was attending his 10^th such lesson, although there is also reference in the papers to it being only his 7^th session.  Whichever it was does not really matter.  On any view he was a relative novice.  The lesson started early in the morning at about 6:30 a.m. and had been going for between 30 to 45 minutes when the Plaintiff fell out of the pose that he was attempting to hold and fell onto his left knee-cap which he fractured.  This would have been a very painful injury to have sustained.

5.  At page 85 of the bundle, there is a chart which shows and explains the 26 various postures that the practitioner needs to adopt over the course of the 90-minute session.  He was injured whilst attempting to perform posture number 6 [page 86], which is called Dandayamana -Dhanarusana which involves standing on one’s right leg whilst bending the upper torso forwards, with the right arm outstretched ahead, whilst raising the left leg backwards and reaching back with the left arm in order to take hold of the left ankle with the left hand.  This is the exercise he was attempting which perhaps is easier to look at in a diagram or photograph than to actually describe.

6.  I should say something about the equipment provided.  Each practitioner is provided with a yoga mat, and it is to this mat that much of the proffered expert evidence is directed to.  It is made of a PVC material and is designed to be non-slip [see page 180].  Its dimensions are 24” x 87”.  On top of this mat the user will lay a towel which covers its entire surface.  The towel is provided by the studio and its principal purpose, it would appear, is to soak up the practitioner’s copious perspiration which increases as the 90-minute section progresses.  A secondary purpose may also be that the towel will provide a surer surface and footing on the mat as the exercises are done.  There is a photograph of the studio showing how the mats and the towels are laid out before the start of a session [see page 179].  The person attending the lesson will then unfold the towel over the top of the mat.  The unused mats are left in their places, as shown in the photograph with the towel folded in place at the end of the mat.  The final observation that I need to make is that the studio has wall-to-wall carpeting.

The Accident

7.  I take this principally from the case pleaded in the statement of claim [18/27] and I have also had some regard to the plaintiff’s witness statement [62-78].  There were only about 10 participants in the session led by an experienced and qualified instructor in this type of yoga.  Because the studio capacity is much more than 10, many of the mats with their towels folded were not being used and one such unoccupied mat was a couple of feet in front of the one being used by the Plaintiff [see photo at page 75].  About half an hour into the session, the Plaintiff and his fellow participants were invited to adopt posture 6, having previously gone through the first five postures.  In attempting this posture, the Plaintiff lost his balance.  When trying to regain his balance, “the Plaintiff’s body thrust forward and he stepped onto a sticky yoga mat in front of him.” [See para.4(g) statement of claim [page 22]].  The statement of claim goes on to plead that once he stepped onto the unoccupied yoga mat, with its folded towel he felt that he had stepped onto “something wet and/or slippery”.  He lost his balance and fell knee forward landing on his left knee which resulted in him fracturing it.

8.  The allegations of negligence and breach of duty fall into two categories.  Firstly, a defective mat in that it had a slippery surface particularly when wet and secondly, that proper instruction and assistance had not been given to a relative novice such as the Plaintiff in the execution of this posture to ensure that he performed it safely.  It is to these two general complaints that the proposed expert evidence from two experts relates. 

9.  The Defendant’s defence denies any negligence on its part.  The mats are said to be perfectly safe and suitable, having a non-slip surface and that the instruction and supervision of the Plaintiff, as with all the participants, was entirely appropriate to the 26 postures, this one in particular being  perfectly safe for a relative newcomer.  The participants were not, and are not, expected to perform these postures to the degree of accomplishment of an expert as demonstrated in the brochure that has been produced.  Less supple relative beginners are not expected to stretch to the degree that an expert will be able to.  As each posture is introduced, the instructor will demonstrate it and a commentary is provided as to how it should be done.  The participants proceed at their own place and ability, benefiting from each posture as they are able to having regard to their own level of fitness, ability and experience.

10.  That is as far as I need to go on the pleaded issues in order to understand the case being put forward by Miss Lee, on behalf of the Plaintiff, for the admission of the expert evidence.

The Experts

11.  Mr Courtney, of Hong Kong University’s Department of Industrial and Manufacturing System Engineering, addresses the suitability of the mat and a Dr Louie, a lecturer at the Department of Physical Education at the Baptist University speaks to the physical aspects of these yoga exercises with particular regard to the posture that the Plaintiff was attempting.

12.  I take Mr Courtney first.  Understandably, in attempting to provide context to his report, Mr Courtney has given a description of the exercises from the literature about this kind of yoga and from what the Plaintiff has said and, in doing so, he has expressed conclusions and opinions about it which are outside his remit and expertise.  If his evidence were to be admitted I do not think a judge would have any difficulty in disregarding those passages.  He then addresses the issue of whether the yoga mat was slippery and in order to do so has calculated the co-efficient of the mat’s friction.  He has also acquired from Ebay an “Official Bikram Yoga Mat” of which he has also given its co-efficient of friction in both dry and wet conditions.  He has judged that when one compares the two mats, the “Official” mat is less apt to cause a slip.  At para.3.20 [167] he concludes that both the mat being used by the Plaintiff and the “Official” mat with a towel surface on it, were not slippery in both dry and wet conditions provided a towel was also placed over the mat being used by the Plaintiff.  But in wet conditions, the mat used by the Plaintiff was dangerous because a wet foot coming into contact with this mat would slip or skid as would a wet heel coming into contact with it.  His conclusion is that had the mat in front of the Plaintiff been covered with a towel or, had there been an official mat in place there or had there been no mat at all, just the carpeted floor, then the Plaintiff would not have slipped.

13.  Dr Louie, an expert in physical education has provided a very wide-ranging report including his views on the scientific properties of the mat that had been provided to the Plaintiff and agrees with Mr Courtney about its propensity to induce a slip when wet.  He also speaks about its thickness.  None of this comes within his field of expertise and would need to be redacted from his report were it to go in.

14.  He then provides a helpful section [para.4] about supervision and instruction, drawing in the guidelines in the “American College of Sports Guidelines … (2006)”, which provides guidelines for teaching yoga classes and he sets out a number of points that appear in that Manual.  Obviously, some very sensible measures are recommended there for the safe execution of physical exercise such as these yoga postures.  At 4.2.2, he speaks of this particular posture and analyses it and how it should be taught.  It does not appear from his report whether he is a qualified yoga instructor.  If he is then the advice appearing there is what one might expect to come from such an instructor, who would be qualified to say these things.  I am not sure whether Dr Louie has that expertise or how else he feels qualified to say what he has at 4.2.2.  Nevertheless, coming from a suitably-qualified person, this is the sort of evidence that would be useful to a judge in deciding this sort of case.  As to his conclusions, I would have thought that someone in Dr Louie’s position should be able to say these things within the bounds of his expertise save for d. which relates to the physical qualities of the mat and in e. in the last sentence everything following the words “the postures” would need to be struck out.

The Law

15.  An expert’s evidence will be admissible if the subject upon which the person proposes to give evidence is relevant to the issues in the proceedings; secondly, that the witness is a qualified expert who can give evidence on the subject matter in question and that the subject is a matter of art, science, learning or knowledge which can become the subject of expertise by study and finally, the subject upon which the person proposes to give evidence is one upon which the tribunal requires the assistance of an expert.

16.  Both Miss Lee and Mr Sakhrani, who appears for the Defendant and opposes the appeal, have shown me a number of cases which relate to the use of experts.  Ultimately, each case will have to be decided on the basis of the pleaded issues and the apparent factual evidence that bears on those issues upon which expert evidence is sought to be introduced.  In this matter the principles to which I have referred in the previous paragraph are those which must guide me to a conclusion, remembering always that courts tend to be wary of the admission of expert evidence unless the party seeking to put in that evidence can demonstrate the necessity of having that evidence admitted, it having passed muster in terms of relevance to the issues and the subject matter of the dispute before the court.  That is all that I think I need to say on how I should approach this appeal, save to say perhaps that in dealing with so many of the issues that occur in the course of a trial with a claimed scientific or technical bent, the answer is, more often than not, provided by the application of judicial commons-sense and the judge’s general experience of life and of the conduct of human affairs.

Conclusion

17.  I take Dr Louie’s evidence first because it seems to me that of the two proposed experts, his evidence is less problematic.  I have decided to allow his evidence to be called, although much of it would accord with common sense, such as the need to warm-up properly before exercising and not pushing oneself too far in performing any particular exercise before one has achieved a certain competence.  Nevertheless, I also consider that he is able to speak to best practice in this area by, for example, producing the American Guidelines and speaking to them.  It is also worth observing that the Defendant has a number of witneses who are qualified in yoga and in that sense can be considered “expert” whilst the Plaintiff has none.  Dr Louie, presumably as an expert in Physical Education, which he teaches, will be able to provide a counterbalance.  Nevertheless, his present report will need to undergo considerable editing to restrict it to what he is expert on and to address only what is relevant.  Paragraphs 1 and 2 are perfectly in order.  Paragraph 3 will need to be redacted in its entirety.  Paragraph 5 can stay save for 5(d) and the references in 5(e), to which I have already referred, which will need to be redacted.  The published material in paragraph 6 must be produced and he will need to extract the passages which he relies on and attach those to his revised report which should also contain a paragraph about his expertise.

18.  I have decided that Mr Courtney’s evidence is neither relevant nor helpful and this is not intended to be a criticism of Mr Courtney.  Unfortunate accidents, where a person slips and falls, are commonplace.  To then seek to apply scientific formulae, such as co-efficients of friction of materials and surfaces against the background of a dynamic and fast moving emergency such as this one is not going to help a judge where the expert has a had to make a number of assumptions to arrive at a conclusion which, more likely than not, will not be borne out on the evidence on the day when the judge hears it at the trial.

19.  The evidence is going to have to be broadly appreciated by the judge, taking in all the circumstances of this incident and he will have to decide whether there was negligence or breach of duty by the Defendant in the circumstances of what the Plaintiff was doing at the time.  Whereas, it may well be of assistance for the judge to hear about what is regarded as best practice in physical exercise activities such as yoga, he will be able to arrive at his conclusions without the sort of evidence that Mr Courtney can provide him in terms of the physical properties of the mat being used and its relative merits in relative to the “Official” one purchased on Ebay.  If required, both mats can be produced for the judge to examine which, together with all the other evidence, will be sufficient.

20.  I will therefore allow this appeal to the extent that I have indicated and on the terms that I allowed as to the permissible content of Dr Louie’s report.

Costs

21.  The Plaintiff has succeeded, albeit to a restricted extent.  I would propose a costs order nisi that the costs of the appeal should be the Plaintiff’s costs in the cause.  The costs before the Master will remain undisturbed, she having ordered costs in the cause, the matter having been argued before here briefly and as part of the Check List Review hearing.