WONG MAN KIN v. SECRETARY FOR JUSTICE (for and on behalf of the Director of Highways) AND ANOTHER

HCPI 947/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 947 OF 2013

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D E C I S I O N

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1.  My attention was drawn to this action after it had been set down for trial in the fixture list and the set down bundle came to me to assign a trial judge for the action, that being my usual practice as the Judge in charge of the Personal Injury List. I try all personal injury actions of importance, of complexity or which involve substantial claims. Straight forward cases are normally assigned to other judges, usually Deputy High Court Judges, to try.

2.  In this action, commenced on 8 November 2013, the plaintiff claims damages for personal injuries that he suffered in a traffic accident that took place at about 9:10 a.m. on 26 November 2010 near Lamp Post No. FA5631, Route Twisk, Tsuen Wan, New Territories.  He claims that, owing to the negligence of the defendants in carrying out the road works on the stretch of road in question, there were loosened paving materials on the road that caused his motorcycle to skid; and, as a result, he fell from the motorcycle and suffered injuries. 

3.  After reviewing the set down bundle,  I set down the action for trial before me and, by letter dated 29 March 2016,  I directed the:

“Parties to write to me within 14 days to explain why expert evidence on the condition of the road surface in question was not obtained.”

4.  When I reviewed the set down bundle I noticed a clear conflict of facts between the parties.  The plaintiff said in his witness statement that the newly paved stretch of road had not been properly set and, as he drove on it at about 9 a.m. in the morning - he said he was not driving particularly fast, 40 kilometres per hour, he was driving through a reverse S bend - and very soon after his motorcycle went onto the newly paved stretch of road, the front wheel in effect skidded.  It lost traction and he lost control, and fell.  The defendants’ witness statements were to the effect that, after the stretch of road was paved, it was cleaned and it was tested before it was reopened at about 5 p.m. on the previous evening; and the defendants also produced some photographs that had been taken an hour after the accident had occurred; and they also relied on other documentary evidence about the state of the newly paved stretch of road.

5.  When I saw this clear conflict between the two parties as to the condition of that stretch of road at the time of the accident, the thought occurred to me to ascertain whether or not it was possible for an expert engineer on roadworks to look at the objective evidence on the state of the newly paved stretch of road and to say what the condition of the road was at the time of the accident?  That was the reason for the direction I made on 29 March 2016.

6.  In response, the parties submitted a joint letter dated 8 June 2016 in which:

(a)   the plaintiff’s solicitors indicated that, upon considering Senior Counsel’s advice, they had instructions to instruct a highways engineering expert and a motorcycle expert to support his claim on liability; and

(b)   the defendants took the view that no liability expert evidence should be adduced for various reasons.

On 13 June 2016, and thereafter, I gave various directions for written submissions to be exchanged, and extensions of time for that to be done. I heard oral submissions from the parties on 26 April 2017.

7.  The plaintiff sought leave to adduce the expert opinion evidence of Dr Mehran Azari, a chartered civil engineer specialising in road works with 30 years’ experience in the construction industry, and of Mr Simon Kwan Ying Ho, a professional motorcycle racer and coach and instructor; and the defendants opposed the plaintiff’s application on the grounds:

(a)   that the plaintiff was barred by a consent order[1] from making, and the court did not have the jurisdiction to grant, such application;

(b)   alternatively, his application should be dismissed as a matter of discretion because the expert evidence intended to be adduced was not in a recognized discipline, was not reasonably required to enable the court to resolve the issues in dispute, and was not proportionate.

8.  I prefer to deal, firstly, with the admissibility of the expert evidence sought to be adduced before dealing with the jurisdiction point.

9.  In his report, Dr Azari set out answers to the questions posed to him as follows:

“1) Whether the procedure set out by the Defendants was the proper one for carrying out the said Road Work.

Response:

The works methodology applied to these works appears largely to have been in accordance with the requirements shown in References 10, 11 and 12. However, DocumentRef 08/HY/2008/1502T/TW/433/10(s) (Reference 2 – Tec Exh 36) shows that there was an omission on the use of the Loose Chippings Ahead Sign, the reference image below taken from Reference 12. This sign should have been placed prior to the works area and repeated along the entire affected length.

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7) Whether the defendants are under the duty to warn road users by putting sign of “Loose Chippings Ahead” in advance of the subject Section due to the possibility of the presence of loose chippings or stones or granules and that such signs should be repeated frequently along the affected length.

Response:

Reference 12 clearly shows the provision for the use of the “Loose Chippings Ahead Sign” is required to be used on works of this nature. The omission of the sign in these works is clearly in contravention of standard working practices for these types of works. Reference 12 also required specifically that the sign be repeated frequently along the affected area. I am aware of no evidence to show whether this was done.”

I do not need Mr Azari to give expert opinion evidence as to the need, if any, and the omission, if any, to put up a road sign warning of “Loose Chippings Ahead”. I can determine these matters without the assistance of expert evidence.

“2) Whether the procedure had been properly carried out.

Response:

This is primarily a question of fact. Based on my limited review of the evidence to date, I am unable at this time to opine about whether the work was in fact properly carried out.  I may be able to provide further opinion in due course following more comprehensive review of the evidence.”

As this is a question of fact I do not need the assistance expert opinion evidence to determine this question. Even if I needed his assistance, I am not satisfied that there would be additional material evidence available to enable Dr Azari to provide a further opinion on the matter.

10.  In his report, Dr Azari set out answers to the further questions posed to him as follows:

“3) Whether loosened paving materials would still be expected to be found on the road surface if the vacuum sweeping has been properly carried out and if so how much.

Response:

Vacuum sweeping is not assured to remove 100% of the loose materials when the operation is complete.  However, if the process of vacuum sweeping is undertaken correctly, it will remove enough of the loosened materials so as not to pose a significant risk to the travelling public.  It is required that inspections be carried out post sweeping operations to ensure enough of the loosened materials have been removed to no longer pose a risk.  At this stage, I am unable to opine about whether any or any sufficient checks were undertaken at the material time to ensure that the sweeping operations were undertaken correctly.”

It is common ground that vacuum sweeping cannot guarantee 100% removal of loosened materials.  It is also common sense that, if the vacuum sweeping is not done correctly or sufficiently, it is likely that there will be more loosened materials on the road than that there should be.  Dr Azari is unable to say whether the sweeping operations were done correctly. This is a question of fact I have to decide based on the credibility of Mr Leung Yuk Lun, who inspected the road after the sweeping operations and based on the skid-resistance test report.

“4)    Whether paving materials are expected to be “scratched off” in small quantities as “tiny granules” by heavy vehicles travelling on the repaved road, and if so, whether the Defendants should have taken reasonable steps to clean up the “tiny granules” in order to ensure the road surface was safe for all kinds of road users, including motorcyclists.

Response:

Standard working practices recognise that quantities of material will in due course be loosened from the surface and deposited across the works area and beyond.  This consideration is demonstrated in the standard works practices for this type of work where vacuum sweeping is required to be undertaken post completion of the main laying works.  The responsible party, in this case, the contractor, should give consideration to the speed and volume of the build-up of the loosened materials for the site they are working on.  There is the possibility that loose materials can build up at an accelerated rate due to increased traffic volumes in particular cases and may result in a situation where the build-up of the loose materials would result in a potential safety risk.  The contractor should therefore monitor the area ensuring that the build-up of loosened materials is prevented by shortening the period between sweeps for the site to ensure that it is safe for road users.”

Dr Azari’s general observation that post-completion vacuum sweeping is required due to the likelihood of some paving materials becoming loosened represents the defendants’ actual practice[2].  Clearly, increased traffic volumes will increase the possibility of a build up loose materials. Again, I do not need Dr Azari’s assitance to determine whether or not the necessary sweeping was properly done.

11.  It is clear from the tenor of Dr Azari’s report that he is unable to say what the condition of the road was at or near the time of the accident by looking the available objective evidence, such as the photographs, on the state of the newly paved stretch of road.  As Mr Ozorio SC, who appeared for the plaintiff, frankly conceded, because we are talking about black particles on a black road surface, it is difficult to capture that on the photographs.  I will need to determine this issue from the evidence of the plaintiff and the other witnesses who will be giving evidence at the trial, including the evidence of the skid test and the evidence of the usual time for the binding material to be stable.

12.  For the reasons set out above, I do not accede to the plaintiff’s application for leave to adduce expert evidence from Dr Azari.

13.  The application to admit the opinion evidence of Mr Kwan has been made by the plaintiff without any prompting from the court.  Even if he can be classified as an expert witness, I do not need the assistance of his “expert” opinion for me to determine the issues that arise in this case, and, specifically, the 4 issues identified in §32 of the plaintiff’s submissions dated 20 April 2017. I accept the submissions contained in §§21-32 in the defendants’ submissions dated 24 April 2017 that these matters are matters of common sense and that I do not need the assistance of Mr Kwan to determine the 4 specific issues:

(1)   whether the presence of loosened paving materials posed a potential hazard of skidding to a motorcyclist;

(2)   whether the risk of skidding would be higher if the motorcycle was travelling downhill instead of uphill on the subject section;

(3)   whether it is possible for a reasonable motorcyclist, travelling in the similar circumstances as the plaintiff, to avoid skidding; and

(4)   whether the plaintiff could have done anything to reduce the risk of skidding, had the plaintiff been warned of the hazard of loose chippings on the surface ahead of him.

14.  As I have not acceded to the plaintiff’s application to adduce into evidence the expert opinions of Dr Azari and Mr Kwan, I need not address the jurisdiction point that has been raised by the defendant.  However, as a considerable amount of time and energy has been expended on the jurisdiction point, including further submissions that were exchanged[3], I would briefly state that, if I had acceded to the plaintiff’s application to adduce expert evidence, I would have ruled in favour of the plaintiff on the jurisdiction point, invoking the power reserved to the court under Order 38, r.44 of the Rules of the High Court which states:

“Any direction given under this Part of this Order[4] may on sufficient cause being shown be revoked or varied by a subsequent direction given at or before the trial of the cause or matter.[5]”

15.  The following statements of principle are not controversial. This rule enables a court to review an earlier case management decision relating to expert evidence. Although the rule existed even before the Civil Justice Reform (“CJR”), the exercise of discretion under this rule should be guided by the objectives of the CJR.  The rule may be invoked irrespective of whether the previous order was a consent order or an order made by the court. The circumstances pertaining when the previous order was made would be a relevant consideration in deciding how the discretion under the rule ought to be exercised. Given this rule, it is unnecessary to resort to the traditional ways^[6] to challenge a previous consent order that has been made relating to expert evidence. The rule may be invoked by a party or on the court’s own motion.

16.  The critical factor, which is clearly fact sensitive and requires further consideration in an appropriate case, is what constitutes “sufficient cause” to revoke or vary a previous order made or direction given in relation to expert evidence.  Whether or not there are fetters to the court’s exercise of discretion under this rule, such as proof of erroneous information at the time of the original order or direction; or proof of subsequent event changing the basis on which the original order or direction was made; or a need to establish some material change of circumstances, is best left to be debated when the appropriate case arises.  In this case, I had requested the parties to explain why expert evidence on the condition of the road surface in question was not obtained and, inferentially, to consider whether or not expert evidence on the condition of the road surface at the time of the accident ought to be adduced.  Had Mr Azari been able to express an expert opinion on the subject, which would have been of assistance to me in determining the condition of the road surface at the time of the accident, that would have constituted sufficient cause to enable me to invoke the rule to vary the previous consent order made in this action in relation to expert evidence and to grant leave to the parties to adduce expert evidence on this issue.  If the court seeks expert evidence to assist it and such expert evidence is available and fulfils the criteria of admissibility, as expert evidence and conforming to the objectives of the CJR, then that would constitute “sufficient cause” to vary a previous consent order made in the action in relation to expert evidence.

17.  The plaintiff has failed in his application to adduce expert evidence but has succeeded on the jurisdiction point.  The defendants have succeeded in resisting the plaintiff’s application to adduce expert evidence but have failed on the jurisdiction point.  I could make an order nisi as to costs that there be no order as to costs; or make an order nisi as to costs that the plaintiff pays the defendants’ costs on the application to adduce expert evidence to be taxed, if not agreed, with certificate for 1 counsel and that the defendants pays the plaintiff’s costs on the jurisdiction point to be taxed, if not agreed, with certificate for 1 counsel.  However, as I have caused the parties to incur these extra costs in the exercise of my case management powers, I am minded to and I make an order nisi as to costs that the costs of the application be in the cause, with certificate for 1 counsel.