LAW KAR CHEUNG v. SCORE SUCCESS ENGINEERING LTD AND ANOTHER

HCPI 154/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 154 OF 2008

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REASONS FOR DECISION

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1.  The case was referred for Pre-Trial Review on:

(1)     admissibility in the main action the expert reports on liability on behalf of the 1^st Defendant and the 2^nd Third Party adduced in the Third Party Proceedings pursuant to leave granted by Yam J dated 9 March 2009;

(2)     calling the doctors on the medical reports on quantum at trial.

2.  The Plaintiff was a curtain wall cleaner.  The 1^st defendant was the principal contractor, and the 2^nd defendant the owner of the building and also the hanging gondola for the cleaning suspended from the roof top.  The 1^st and 2^nd Third Parties (at the suit of the 1^st Defendant) were the engineers examining and certifying the fitness of the gondola.

3.  The 1^st Third Party has been absent and not been a live party in the proceedings for some time.

4.  The gondola was hung by wires connected to 2 protruding jibs of the suspension device.

5.  The accident occurred on 7 October 2005.  The screws of 1 of the jibs came loose, causing that jib to drop below the level of the other one.  The gondola tilted, causing the Plaintiff and his co-worker to loose balance. 

6.  The Plaintiff was wearing a safety harness connected to an independent lifeline anchored to the horizontal bar connecting the protruding ends of the 2 jibs.  The Plaintiff’s hands collided with the independent lifeline and were injured.  The injuries healed, and the main problem is lingering pain.

7.  An Accident Report dated 3 March 2006 by Mr. S.L. Lau, Safety Officer of the Labour Department, attaching the Technical Report dated 7 February 2006 of Mr. W.C Chan, Government engineer seconded to the Labour Department, set out examination of the defective screws of the jib with comments by the respective officers.

8.  The issue concerning the expert evidence on liability was mainly whether the defect could have been detected during the routine maintenance by the Defendants, and/or the more thorough examination by the 1^st and/or 2^nd Third Parties.

9.  The Accident Report was pleaded by the 1^st Defendant as against the Third parties. 

10.  On 2 July 2008, the Accident Report was admitted in the main action by consent of the Plaintiff and the 1^st and 2^nd Defendants. 

11.  On 6 January 2009, the Accident Report was also admitted in the Third Party Proceedings by consent of the parties including the 2^nd Third Party.  However, the Master refused leave for the 2^nd Third Party to adduce an expert report on liability in reply.

12.  The 2^nd Third Party appealed to Yam J and leave was granted to adduce an expert report on liability by the 2^nd Third Party in the Third Proceedings.  The expert report of Mr. W.K. Leung was later adduced pursuant to leave granted.  Yam J also granted leave to the 1^st Defendant to adduce the expert report on liability in the Third Proceedings and the report of Mr. C.M. Law was later adduced.

13.  The 1^st Defendant no longer relies on the Accident Report now that it has obtained Mr. Law’s report.  The Plaintiff still relies on it.

14.  The 1^st Defendant took out a summons for the admissibility of Mr. Law’s report in the main action.  Mr. Leung’s report.  The 2^nd Defendant did not rely on any expert report on liability.

15.  Mr. Law’s report, apart from dealing with the screw mount of the jib, commented in passing on the way the Plaintiff had tied the lifeline on the horizontal member connecting the 2 jibs rather than anchoring it to the building itself (para. 7.5).  This part of the report did not arise from the Accident Report and went beyond the leave granted by Yam J.

16.  Ms. Leung, for the Plaintiff, indicated that she had no problem with Mr. Law’s report save as to para. 7.5, and sought leave to adduce a report in reply in the event para. 7.5 of Mr. Law’s report is also admitted.

17.  Similar observation can be made of Mr. Leung’s report, in that para. 5.2 to 5.6 went beyond the screw mount and commented on the anchorage of the independent lifeline.

18.  More precisely, the question of admissibility related to parts of the reports dealing with anchorage of the lifeline not covered in the leave granted by Yam J.

19.  Mr. Cheng, for the 1^st Defendant, relied on the anchorage of the lifeline to the jib rather to the building itself as contributory negligence by the Plaintiff.

20.  At once, question of relevance arises in that given the Plaintiff was working on the gondola while his safety harness was anchored to the lifeline, there had to be close proximity between the gondola and the lifeline.  As the accident was caused by the collision of the displaced gondola with the lifeline (where neither did the gondola fall off the building nor did the lifeline fall off with the jibs and the event of an independently anchored lifeline is not in issue), Mr. Cheng was asked how the collision could have been avoided had the lifeline been anchored to the building itself but still in close proximity with the gondola.  Neither he nor the reports of Mr. Law or Mr. Leung could provide any ready answer.  Hence, I ordered that the relevant parts be excised from the reports of Mr. Law (para. 7.5) and Mr. Leung (para. 5.2 to 5.6), and those reports be admitted in the main action as well.

21.  I refer the parties to Section F of the PI Questionnaire under PD 18.1, where the parties have to set out precisely the issues and subjects to be addressed by the liability expert.  Had the parties and their experts properly applied their mind to such discipline, the problem could have been avoided, or at least streamlined and requiring less time in the oral hearing.

22.  As to the medical reports, parties estimated that calling the doctors will require another half a day or so.  As the trial of the main action and Third party proceedings will take 5 to 6 days, I granted leave to call the doctors (subject to the decision of the trial judge on the matter) and reserved 6 days for the trial, in order to save time going through the medical evidence to see whether any disputes could be resolved without calling the doctors.

23.  I ordered costs in the cause, save that the Plaintiff could only recover 3/4 of the costs in the event of success (as well as on Legal Aid taxation) as Ms. Leung’s unhelpful equivocality as to whether the Plaintiff was relying on the Accident Report at all had caused unnecessarily digressed investigations.