XCHRX YOUNG, CHRISTOPHER GORDON v. LEE CHU

HCPI 1484/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1484 OF 2000

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R U L I N G

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1. This is an appeal by the plaintiff from an order of Master Cannon made at the Checklist Review Hearing of this matter on 26 June 2001. At that hearing, Master Cannon ordered that no expert evidence as to liability shall be adduced either in written or oral form. It is this order that the plaintiff is appealing from.

2. This is a personal injury case in which the plaintiff claims damages for personal injury which he sustained arising from a traffic accidence which occurred on the early morning of 25 March 2000. The pleaded case of the plaintiff was that at about 6:15 a.m. on the day in question, the plaintiff was riding his motorcycle on the Shek-O to Stanley Road (in effect Tai Tam Road) near Tai Tam Reservoir heading in the direction of Stanley. There was a private car driven by the defendant in front of the plaintiff's motorcycle which was travelling at a slow speed of about 20 k.p.h or less. When the plaintiff was in the process of overtaking the defendant's private car, the defendant suddenly and without prior warning accelerated and turned right, across the path of the plaintiff"s motorcycle, thus causing the collision which resulted in severe injuries to the plaintiff.

3. The defence, while admitting the collision, denies negligence on the part of the defendant and pleads contributory negligence on the plaintiff's part in overtaking the defendant's car in unsafe circumstances.

4. From the pleadings, it is clear that the main issue between the parties must be the manner in which each of them drove their respective motorcycle and car. It should also be noted that there was no prosecution by the police against either driver as a result of this accident.

5. It appears from the police sketch plan of the locus in quo that this accident happened at that stretch of Tai Tam Road where on the northbound carriageway the road markings delineates a pocket with an arrow pointing right allowing motorists on that carriageway to turn right into Tai Tam Reservoir Road (east) which leads to Tai Tam Harbour and the International School. Beyond that right-turn pocket is a hatched area marked on the road surface. However, there is no such similar pocket marked on the southbound carriageway which is the carriageway on which both the plaintiff's motorcycle and the defendant's car was traveling at the time of the accident. To the west, opposite Tai Tam Reservoir Road (east), is a road which has a metal barrier across its mouth and which is referred to as a closed road in the plaintiff's expert report.

6. The expert report which the plaintiff wishes to adduce into evidence in this case is a report from Mr T.V. Runnacles who, according to his Curriculum Vitae, is a Transport Planner specializing in Public Transport System and who has, inter alia, been with the Transport Department of the Hong Kong Government in various positions from 1981 to 1993.

7. The report itself is entitled "Observations on a Traffic Accident at Tai Tam Road on 25 March 2000". It should be noted at once that it is accepted by all concerned that the contents of the report is not an attempt at reconstructing how the accident happened or could have happened. Instead the report, after citing the circumstances of the occurrence of the accident, deals with the site at which the accident occurred. And then, deals with the road markings, in particular the hatched area which is marked on the road itself way the accident happened. The report then goes on to deal with the significance of the road markings including the hatched area, all of which can be found from the Road Traffic (Traffic Control) Regulations and from the Road Users' Code.

8. Ultimately, this report by Mr Runnacles seeks to draw two conclusions. The first is that, from all the circumstances, it is reasonable to deduce that the defendant's car must have crossed the longitudinal white line road marking. The second conclusion that it came to was that, no vehicle without a closed road permit would be expected to turn right (as the defendant's car did) into the closed road giving a number of reasons for that conclusion.

9. Section 58(1) of the Evidence Ordinance which deals with admissibility of expert opinion provides as follows:-

" Subject to any rules, were 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."

10. In my view looking at the contents of this report prepared by Mr Runnacles, I am unable to say that it comes within the ambit of expert evidence such that it can be admissible for the following reasons.

11. Firstly, the law has for long recognised that there are certain limits insofar as expert evidence is concerned. It is not permissible for an 'expert' to give evidence of what the law is (apart from foreign law) [see paras. 32 - 52 Phipson on Evidence 14th ed.]. This appears to be what this report is doing in showing the effect or significance of the road markings in particular the hatched area. This can easily be done by counsel referring the judge to the Road Traffic (Traffic Control) Regulations which are contained in the subsidiary legislation of the Road Traffic Ordinance Cap.374 as well as the Road Users' Code.

12. Secondly, insofar as the actual lay out of the site where the accident occurred, it is common grounds that there is in existence the usual sketch plan prepared by the police officer who investigated this accident. Moreover, there are also photographs of the site taken by the plaintiff himself showing all the road markings.

13. Thirdly, if evidence is deemed necessary to show what vehicles the closed road would be accessible to, this evidence would have to come properly from the government department concerned, probably in this case the Agricultural and Fisheries Department and not from Mr Runnacles.

14. Fourthly, the conclusions come to in the report based on all the above matters should properly be made by counsel in submission and for the judge to find on the facts of the case. It cannot be the conclusions drawn by an 'expert' and put forward to the judge as expert evidence.

15. Quite apart from the report of Mr Runnacles, looking at this case as a whole and the issues between the parties as shown by the pleadings, it is quite apparent that this is not a case where an expert on liability is called for or necessary to assist the judge in determining those issues.

16. Accordingly, and for the reasons given above, the Master was quite correct in making the order that she did at the Checklist Review Hearing. For those same reasons, the appeal by the plaintiff is dismissed.

17. There will be a costs order nisi that the costs of this appeal be paid by the plaintiff in any event.