CHUNG YUEN YEE v. SAM WOO BORE PILE FOUNDATION LTD AND OTHERS

HCPI 1053/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1053 OF 2006

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J U D G M E N T

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1.  Before the court is the 1^st, 3^rd and 4^th Defendants’ appeal from Master B. Kwan’s decision dated 15 April 2008 dismissing their application for leave to adduce expert evidence as set out in:

(1) a report dated 6 February 2008 by Dr Jonathan Chung (“Dr Chung”), an Associate Professor of the Department of Physics & Material Science of the City University of Hong Kong; and

(2) a report dated 5 February 2008 by Dr Wong Yun Yin (“Dr Wong”), an occupational safety practitioner.

I.   FATAL ACCIDENT GIVING RISE TO THE CLAIM HEREIN (“THE ACCIDENT”)

2.  On 27 July 2004, at about 4 pm, Mr Lai Wing Kee, deceased (“the Deceased”), an employee of the 2^nd Defendant, was engaged in the lifting of a forklift truck (“the Truck”) by a lorry-mounted crane (“the Crane”) from the pavement near the entrance to the 4^th Defendant’s premises at Yau Tong Marine Lot No.35, Cha Kwo Ling Road, Kowloon onto the platform of the lorry (“the Lorry”) which was parked on the roadside in preparation for the transportation of the Truck to another location in Tsing Yi for repair and maintenance.  While being lifted over the left side-board of the Lorry, the Truck fell and crushed the Deceased (who was standing underneath it) to death.

II.  PRESENT STATE OF EVIDENCE ON HOW AND WHY THE ACCIDENT OCCURRED

Eye witness

3.  None of the witness statements exchanged between the parties in compliance with the direction given by Master B. Kwan at the Checklist Review on 25 April 2007 provide first-hand evidence on what caused the Truck to fall.

4.  Investigation by the Labour Department and the police after the Accident yielded only one eye witness account, i.e. that by Mr Lam Siu Mo (“Mr Lam”) who was employed by the 3^rd Defendant and operating the Crane at the time of the Accident.

5.  Although Mr Lam also recalled the presence of a Mr Wan Pui Yuen (“Mr Wan”), a maintenance technician in the employ of the 4^th Defendant, Mr Wan claimed not to have seen how the Accident occurred or noticed how the Deceased secured the Truck for lifting by the Crane when he was interviewed by the Labour Department and the police and when he gave evidence at Death Inquest No.1267/2004 held on 4 and 5 July 2005 (“the Death Inquest”).

6.  Neither the Plaintiff nor the Defendants have filed any witness statement by Mr Lam.  I shall proceed on the basis that Mr Lam will not testify at the trial of this action.

7.  Mr Lam had, however, made to the Labour Department and the police a number of declarations and statements.  In particular, Mr Lam said in his declarations dated 6 and 7 August and 29 October 2004 that:

(1)     The Deceased had rigged the Truck (without its counterweight) with 2 metal chains (“the Chains”).  One of the Chains (“Chain A”) had an eyehook at one end only while the other (“Chain B”) had an eyehook at both ends.  The Deceased hitched that end of Chain A without an eyehook to the mast of the Truck and then attached it back to a link of Chain A using a shackle.  The other end of Chain A with an eyehook was looped around the hook of the Crane and then hooked to a link of Chain A using the eyehook.  As for Chain B, the Deceased hooked the eyehook at each end to the lashing eye on either side of the rear body of the Truck.  Both Chains were rigged to the hook of the Crane separately locked by a safety catch but without a master shackle, ring or link.  Accompanying this judgment is a copy of the sketch (“the Sketch”) attached to Mr Lam’s last-mentioned declaration to the Labour Department by which Mr Lam illustrated how the Deceased secured the Truck for lifting by the Crane.  Chain A and Chain B are called “Chain 2” and “Chain 1” respectively on the Sketch.

(2) The working radius of the Crane at the time of the Accident was about 3 to 4 metres.

(3) The Truck did not come into contact with my other object in the course of being lifted.

(4) The last link at the end of Chain A snapped, as result of which the suspended Truck lost support and fell and Chain B jerked to detach from the hook of the Crane.  After the Accident, both Chain B and the safety catch had come off the hook of the Crane.  Only Chain A was left hanging from the hook of the Crane.

8.  It is however significant to note that Mr Lam subsequently conceded under cross-examination by counsel for the 2^nd to 4^th Defendants at the Death Inquest that he did not actually see but he guessed that it was Chain A which snapped first, causing the suspended Truck to lose support and fall which in turn caused Chain B to jerk and become detached from the hook of the Crane.

9.  Both Mr Lam’s declarations and statements to the Labour Department and the police and the transcript of Mr Lam’s testimony at the Death Inquest (as opposed to the Coroner’s findings and verdict) would be admissible as hearsay evidence at the trial of this action: Yu Nongxian v Ng Ka Wing [2007] 4 HKLRD 159 (CA).

10.  In both his written and oral submissions, Mr Andy Hung, Counsel for the Plaintiff, argues this appeal on the basis that an eye witness account of the Accident (in the form of Mr Lam’s declarations and statements to the Labour Department and the police) would be available; that Mr Lam saw Chain A snap first.  However, in light of Mr Lam’s concession in the Coroner’s Court that he did not actually see but merely guessed that it was Chain A which snapped first, I am inclined to agree with Ms Queenie Ng, Counsel for the 1^st, 3^rd and 4^th Defendants, that the trial judge would not be assisted by an eye witness account on at least one material aspect of the Accident, that is, the immediate cause of the Accident. 

Other factual witness

11.  Apart from rigging Chain A to the overhead guard of the Truck to slightly lift up the Truck to rescue the Deceased, the scene of the Accident had been left as it was for the arrival of the police and officers of the Labour Department.

12.  The factual findings made by officers of the Labour Department in the course of their investigation of the Accident are set out in 2 reports:

(1) a Technical Report dated 5 November 2004 (“the Technical Report”) by Mr Chan Wing-cheung (“Mr Chan”), Technical Support/Mechanical Officer; and

(2) a Fatal Accident Report dated 24 January 2005 (“the Accident Report”) by Mr Ngai Ka-wa (“Mr Ngai”), Occupational Safety Officer.

13.  These findings are admissible as factual evidence even without the direction mentioned in paragraph 14 below:

(1) The left side-board of the Lorry platform was damaged [Technical Report paragraph 4.2(d); Accident Report paragraph 3.6 and photograph 4].

(2) There was no obvious mechanical defect in the Crane [Technical Report paragraph 4.3(a); Accident Report paragraph 4.2].

(3) The total weight of the load (the Truck + rear cover + 2 forks + the Chains) was 4.34 tonnes.  This was within the safe working load of the Crane at a work radius of 4 metres.  The Crane had not been overloaded [Technical Report paragraphs 4.3(c) and 5.1].

(4) The parties involved could not produce much information about the Chains.  There was no certificate of test and examination available for either chain [Technical Report paragraph 3.2].

(5) Chains A and B respectively measured 3.26 metres and 3.63 metres in length and 11 mm and 9 mm in diameter [Technical Report paragraph 3.1; Accident Report paragraph 3.3].

(6) Chain A (including the eye hook and the shackle) was generally in acceptable condition despite signs of wear and slight bents in various links [Technical Report paragraph 4.4(a); Accident Report paragraph 4.2].

(7) The overall condition of Chain B (including the eyehooks) was acceptable despite signs of wear in various links [Technical Report paragraph 4.4(b); Accident Report paragraph 4.2].

(8) Neither of the Chains bore any marking of its safe working load [Technical Report paragraph 3.1].

(9)    The Chains were for lashing purposes rather than lifting [Technical Report paragraph 4.5].

(10)   According to information obtained from the internet, the recommended maximum loads, proof loads and breaking loads for the Chains were:

	Maximum Load	Proof Load	Breaking Load
Chain A	3.8 tons	9 tons	15.4 tons
Chain B	2.5 tons	6 tons	10.2 tons

    [Technical Report paragraph 4.5]

(11)   The Labour Department recovered a portion (34.4 mm in length and 11 mm in diameter) of a broken link on the pavement close to the Truck [Technical Report paragraph 4.2(d) and photograph 10; Accident Report paragraph 3.4 and photograph 7].

(12)   About ²/₅ of one of the fractured surfaces of the broken link portion appeared dull with dust while the remaining portion appeared shiny and rough.  The other fractured surface appeared shiny and rough [Technical Report paragraph 4.4(c) and photograph 11; Accident Report paragraph 4.1].

(13)   The Labour Department also found a deformed safety catch and the spring of the safety catch at the scene of the Accident [Accident Report paragraph 3.5 and photographs 10 and 11].

Expert witnesses

14.  At the Checklist Review on 25 April 2007, Master B. Kwan ordered that no expert evidence as to liability shall be adduced in written or oral form save in the forms of the Technical Report and the Accident Report and/or the oral evidence of their authors. 

15.  The Technical Report concludes that the immediate cause of the Accident was the failure of Chain A [paragraph 5.5].  As I understand from reading the Technical Report, Mr Chan so concludes on the basis that a witness had given information that the last link at the end of Chain A snapped, resulting in the suspended Truck losing support and falling which in turn caused Chain B to jerk to become detached from the hook of the Crane [paragraph 4.1(e)]. 

16.  Pausing here, first, the witness in question, Mr Lam, had since qualified that he did not see but he guessed that the suspended Truck fell because the last link at the end of Chain A snapped, resulting in the suspended Truck losing support and falling which, in turn, caused Chain B to jerk to become detached from the hook of the Crane.

17.  Second, the manner in which the Accident occurred is a fact for the judge trying this action to find based on the evidence he accepts and such inferences as he draws from the primary facts he finds.  It is a matter for the trial judge, and not this or any other expert witness, to say “I have read Mr Lam’s declarations to the Labour Department and I accept such evidence and conclude therefrom that the Accident happened as the witness described.”: per Stuart Smith LJinLiddell v Middleton [1996] PIQR 36 (CA) at 42.

18.  Having accepted Mr Lam’s account that the Accident started with the snapping of Chain A, what Mr Chan then proceeds to do is to find out why Chain A snapped.  And he identifies 2 physical causes for the failure of Chain A:

(1) First,

   (A)    The load in Chain A should not have exceeded its recommended maximum load whether Chain A be arranged to give the shortest possible length (1.59 metres) or the longest possible length (2.18 metres) if Chain A was in good condition [Technical Report paragraph 5.3 and Appendix III].

   (B) On the other hand, the load in Chain B should have exceeded its recommended maximum load in both scenario [Technical Report paragraph 5.3 and Appendix III].

   (C)    However, the capacity of Chain A could have been much reduced by the additional stress imposed upon it by having both ends of Chain A hooked back to the chain itself at the time of the Accident [Technical Report paragraphs 5.4 and 5.5].

(2) Second, Chain A had a weak link with a defect.  In this regard, it is believed that the broken link portion found at the scene of the Accident came from Chain A since this portion matched the links of Chain A in terms of diameter [Technical Report paragraph 4.4(c) and photograph 11] (as well as curvature, surface texture and colouring according to paragraph 4.1 of the Accident Report).  It is further believed that the dull and rusty part of one of the fractured surfaces had broken and been exposed to the atmosphere for sometime before the Accident whereas the shiny and rough fractured surfaces were fresh indicating that the fracture took place at the shiny and rough surfaces at the time of the Accident [Technical Report paragraphs 4.4(c) and 5.5].

19.  That Mr Chan can identify 2 physical causes that explain why Chain A could snap even when the load of the Truck was within its maximum loading capacity might show or tend to show that Mr Lam guessed correctly that the snapping of Chain A set in motion the fall of the Truck.

20.  Mr Chan further concludes in paragraph 5.6 of the Technical Report that the lifting of the Truck was carried out in an unsafe manner – unsafe in both the lifting gear and the rigging method used:

(1) The Chains, including the eyehooks, were designed for lashing instead of lifting.

(2) The Chains had not been tested and examined by a registered professional engineer.

(3) The Chains were not of the same length and size.

(4) The 2 ends of Chain A were attached back to the chain.

(5) Chain B was too small.

(6) Defect existed in at least one link of Chain A.

(7) A master ring had not been used to connect the Chains to the hook of the Crane.

21.  Turning to the Accident Report, Mr Ngai concludes that the direct cause of the Accident was the failure of Chain A and adds that the lack of a safe system of work also contributed to the Accident [paragraph 5].  He recommends in paragraph 6 the following preventive measures:

(1)     No lifting gear should be used unless it is of good construction, sound material, adequate strength, free from patent defect and designed for lifting instead of lashing.

(2) Lifting gears should be tested and examined by a competent examiner before they are used.

(3) Adequate steps should be taken to ensure that no workman should stay under or near the load being lifted up.

(4) There should be provided and maintained a safe system of work, which includes at least the following:

   (A)    risk assessment to identify the risks associated with the lifting operation;

   (B) establishment of proper and safe lifting procedure and adequate steps to ensure strict compliance by all personnel concerned;

   (C)    supervision of the overall lifting operation by an adequately trained and experienced supervisor; and

   (D)    use of competent slingers who have been trained in the principles of rigging and who are capable of selecting tackle and lifting gear suitable for the load to be lifted in all rigging operations.

22.  In paragraph 25 of his written submissions, Mr Hung concedes that paragraphs 5 and 6 of the Accident Report are not admissible as expert evidence and expects them to be disregarded by the trial judge.  In my view, Mr Hung concedes rightly and fairly:

(1) It appears to me that in dealing with the immediate physical cause of the Accident, Mr Ngai is merely repeating either the information given to him by Mr Lam or the opinion expressed by Mr Chan in the Technical Report.

(2) Second, once the physical cause of the Accident (whatever it is) is found, consideration and determination of the further question as to whether such cause was brought about by lack of a safe system of work in the circumstances of the Accident is really a matter of common sense and within the knowledge and experience that one can expert of a judge without the assistance of expert evidence.

The Coroner’s verdict and reasons for verdict

23.   In addition to Mr Lam, Mr Wan, Mr Chan, Mr Ngai, Dr Chung and Dr Wong also gave evidence at the Death Inquest.

24. In the course of the argument before me, both parties have sought to refer to and rely on the Coroner’s verdict and reasons for verdict.  For instance, Ms Ng draws my attention to parts of the Coroner’s decision where he expressed reservations about aspects of Mr Lam’s evidence.  Mr Hung takes me to other parts of the Coroner’s decision where he criticized Dr Chung’s written report and live testimony.  For the avoidance of doubt, I have not had regard to the Coroner’s verdict and reasons for verdict which are essentially the Coroner’s views on the effect of the evidence before him.  At the trial of this action, no reliance can be placed on the Coroner’s opinion of Mr Lam (or indeed any other witnesses) as a witness before him.  The reliability of Mr Lam’s assumption that the Accident was set in motion by the snapping of Chain A will be a matter for the judge trying this action, having regard to the other primary facts and circumstances existing and the inferences properly drawn therefrom.

III. RELIANCE BY THE PLAINTIFF ON MR LAM’S DECLARATIONS AND THE TECHNICAL REPORT

25.  The Plaintiff, the Deceased’s widow and administratrix of his estate, adopts as her case on how the Accident occurred Mr Lam’s account in the declarations to the Labour Department as set out in paragraph 7(4) above.  The charges of breach of statutory duties, negligence, breach of common duty of care and breach of contract of employment with the Deceased that follow are premised upon the Accident having been set in motion by the snapping of Chain A.

26.  Further, although the particulars are couched in very wide and general terms, it is apparent that the Plaintiff draws heavily on the opinion expressed by Mr Chan in the Technical Report as to why Chain A snapped namely, the overloading of Chain A caused by the hooking back of both ends of the chain and the pre-existing breakage of at least one link of Chain A.

IV. The position of the 1^st, 3^rd and 4^th Defendants

27.  The 1^st, 3^rd and 4^th Defendants deny the Plaintiff’s case on how the Accident occurred save that the Truck fell and hit the Deceased in the course of being lifted onto the Lorry.  Although, as stressed by Mr Hung, these defendants have not advanced any positive case as to how the Accident otherwise occurred or might have occurred, by such denial, they do put in issue how and why the Accident occurred.

V.  DR CHUNG’S REPORT

28. Dr Chung seeks to advance the following opinion in his report dated 6 February 2008:

(1) The effective length of Chain A and the angle of inclination as depicted by Mr Lam in the Sketch was not feasible in that Chain A would have been too long to take up the weight of the Truck and had to be shortened in the assimilation by Dr Chung by winding it around the overhead guard of the Truck several times until it became taut when the effective length was about 1.2 metres long.  The angle between the metal chains was greater than 90^o while the angle of inclination of the chain in the position of Chain A was about 5^o before lifting (paragraph 5 and Appendix B, item 3.3).

(2)    The breaking load of Chain A (15.4 tons) is far greater than its maximum load (3.8 tons).  Even if the maximum load of Chain A is exceeded, it does not necessarily follow that Chain A will break apart if the breaking load has not yet been reached (paragraphs 3.3.3).  This is borne out by the results of 2 experiments, each using a metal chain similar to Chain A (one with a link with a cut to the same extent as seen in the broken link portion found at the scene of the Accident) and subjecting it to a steady and gradual pulling force (paragraph 4.4.1):

(A) the chain did not break until the force (at 0.01 mm/ minute) reached 15.02 tonnes;

(B) the chain with the cut link did break (though not at the cut link) but only when the force (at 0.41 mm/minute) reached 7.68 tonnes.

(3) The assumption adopted by Mr Chan in calculating the maximum pulling forces on Chain A and Chain B in Appendix III of the Technical Report (namely that the angle of inclination of Chain A and Chain B should be the same) is contrary to basic principles of law of physics and mechanics and therefore wrong (paragraph 3.1).

(4) This false assumption renders unreliable Mr Chan’s calculation of the maximum pulling forces on the Chains at the time of the Accident.  The correct force analysis should be:

	Scenario	Force (ton) on Chain A	Force (ton) on Chain B
1	Based upon the effective length of Chain A and angle of inclination being the same as depicted in the Sketch	2.26	1.73
2	Based upon the effective length of Chain A as depicted in the Sketch	4.77 (max)1.98 (min)	2.61 (max)1.08 (min)
3	Based upon the shortest effective length of Chain A as postulated in Appendix III of the Technical Report	4.33 (max)0.00 (min)	2.37 (max)0.14 (min)
4	Based upon the longest effective length of Chain A as postulated in Appendix III of the Technical Report	4.28 (max)0.00 (min)	2.37 (max)0.11 (min)

(paragraph 3.1.6 and Appendix B)

(5) Although in scenario 2 the maximum load of Chain A was exceeded in 8 out of 14 sets of angle of inclination and in scenarios 3 and 4 the maximum load of Chain A was exceeded in respectively 5 out of 18 sets of angle of inclination and 3 out of 15 sets of angle of inclination, the force in Chain A was still far below its breaking load.  The fact that the force on Chain A (due to the Truck) was well within its breaking load suggests that Chain A was strong enough to lift the Truck without breaking (paragraphs 3.1.6, 3.3.4 and 3.3.5).

(6) That Chain A snapped due to gradual overloading by the weight of the Truck seems not possible (paragraph 4.6.1).

(7) The load-bearing capacity of Chain A should have been enhanced, and not reduced, by having its 2 ends hooked back to Chain A (paragraph 3.2.1).

(8) A link with a cut is not necessarily the weakest point of a metal chain as shown in the experiments conducted by Dr Chung using a metal chain with a link with a cut to the same extent as seen in the broken link portion found at the scene of the Accident (paragraphs 4.4.1.11-4.4.1.13; 4.4.2.11-4.4.2.12 and 4.5.1.7).

(9) Even assuming that the broken link portion found at the scene of the Accident was part of Chain A and that about ²/₅ of its cross-sectional area had already been broken, the load bearing capacity of Chain A would be reduced by 40% (paragraph 3.2.3). 

(10)    Even then, the force on Chain A still did not exceed the reduced breaking load of 9.24 tons (paragraph 3.3.6).

(11)   The broken link portion found at the scene of the Accident was not part of Chain A (paragraph 4.5.3.4).  In addition to pointers observable on a visual comparison, another indicator is that the broken link portion was completely severed from the remaining part of the link.  This does not accord with the results of the experiments conducted by Dr Chung which show that whether the chain broke under gradual loading (paragraph 4.4.1) or a sudden impact load (paragraph 4.4.2):

(A) The broken link severed but remained in one piece in a big “C” shape (paragraphs 4.2 and 4.5.3.2 (a)).   

(B) The chain did not fail at the link inflicted with a cut to the same extent as seen on one of the fractured surfaces of the broken link portion.

(12)    When 2 metal chains are used to lift a load up to a certain level above ground, one of the metal chains suddenly detaches (whether from the load or the lifting hook), the weight of the load, originally shared by 2 metal chains, is taken up by one metal chain.  In this situation, even if the load does not exceed the load bearing capacity of the remaining metal chain, it is possible that the momentum (or impetus) brought by the sudden detachment may be strong enough to break the remaining chain.  The magnitude of such momentum is the product of the weight of the load and the speed it travels upon the sudden detachment (paragraphs 4.2.2 and 4.4.3.5).

(13)    He is unable to reach a conclusive view as to whether Chain A snapped under sudden impact force (paragraph 4.6.2).

(14)    However, the Truck swung or turned while being lifted in the experiment assimilating the subject lifting operation.  Such swinging or turning would have continued until equilibrium had been achieved when the centre of gravity of the Truck had reached directly below the lifting hook.  However, such state of equilibrium would have been easily disturbed when it had been subjected to external force, for example, upon the load colliding with other objects such as the side board of a truck (paragraph 5.3).

29.   In his written submissions, Mr Hung makes a number of points which questions the reliability of the experiments that Dr Chung conducted (e.g. that Dr Chung used “new” chains when Chain A bore signs of wear and had slight bents in various links) and the basis of the views expressed by Dr Chung (e.g. why the loading capacity of a chain would be reduced by 40% if ²/₅ of the cross sectional area of a link has been fractured; why there should be no distinction between an aged chain with a link which had been fractured for some time and a new chain with a newly inflicted fracture).  I am not in a position to undertake any examination of the merits of Dr Chung’s opinion.  Nor should I even try to do so.  This is a matter for the trial judge if the 1^st, 3^rd and 4^th Defendants are allowed to adduce the report. 

30. Expert evidence can and should be admitted into evidence if it is necessary, relevant and of probative value: Chan Kwok Ming v Hitachi Electric Service Ltd , HCPI 322/2002, unreported, Suffiad J referred to in Arfan Muhammed v MPS Engineering Ltd, HCPI 457/2003, unreported, 30 June 2005, per Deputy High Court Judge Muttrie at §6.

31. At the pre-trial stage, the Court should refuse to admit expert evidence only if the proposed evidence is plainly irrelevant.  The Court should however grant leave for expert evidence to be adduced at trial, not only where the evidence is clearly relevant, but also where it cannot at the interlocutory stage form a clear view on its relevance: Ko Chi Keung v Lee Ping Yan Andrew [2001] 2 HKC 63, per Chung J at 831C-833E; Lee Kin Yee Annabell v Lee Wing Kim, HCA 9522/1997, unreported, 6 December 2001, per Chu J at pp.7-8, §§13-15 and Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd [2002] 4 HKC 225, perChu J at 511-512, §11.

32. It has been said that it is an exception rather than the rule that expert evidence is required in personal injuries litigation (especially in cases arising out of road traffic accidents): see, for example, Liddell v Middleton (supra), per Stuart Smith LJ at 41-44; Tong Ho Wing v Wong Fuk, HCPI 1369/1999, unreported, 19 July 2000, per Suffiad J at p.9;  Fong Sai Ho v Harifast Company Limited, HCPI 1199/2003, unreported, 4 March 2005, per Deputy High Court Judge Carlson at §§11-13;and Cheung Yuen Fan Sally v Hong Kong University of Science & Technology, HCPI 106 & 107/2003, unreported, 13 March 2006, per Master B. Kwan at §11. 

33. It appears to me that Master B. Kwan must have considered the present case to be an exception.  Otherwise, she would not have made the order mentioned in paragraph 14 above, allowing the admission of the Technical Report (and the Accident Report) as expert evidence on liability.

34. Mr Hung maintains in paragraph 31 of his written submissions the relevance and probative value of the opinion expressed by Mr Chan in the Technical Report.

35. I agree with Ms Ng that it is significant that there is already expert evidence on liability in this case.

36. In Chan Wai Ying v Sin Kit Sang, HCPI 805/2006, unreported, 10 July 2007, Deputy High Court Judge Gill said at §67:

“Secondly, there is already admitted in evidence an expert’s report, and the right for either party to have the author called to be cross-examined on it.  But he is a witness of neither party and for different reasons all defendants are critical of his methodology and conclusions.  If there is already expert evidence available to the court which one party or another finds wanting, should not that party be entitled to call his own expert to counter it?”

In Chan Wai Ying v Sin Kit Sang, the expert report that was already in was a road traffic accident reconstruction report made by a chemist in the Forensic Science Division of the Government Laboratory.

37. Mr Hung is dismissive about Dr Chung’s report by reason of, inter alia, Dr Chung’s inability to say conclusively how Chain A might otherwise have broken than under the gradual pulling force exerted on it by the load of the Truck or that Chain A broke only after having been subjected to the sudden force impact caused by the detachment of Chain B from the hook of the Crane. 

38. However, this does not detract from the fact that, with reasons (the validity of which has to be examined elsewhere), Dr Chung questions the assumption that the snapping of Chain A set in motion the fall of the Truck and disagrees with the 2 reasons advanced by Mr Chan to explain why Chain A could snap when the load of the Truck was within its loading capacity.

39. Given the 1^st, 3^rd and 4^th Defendants’ stance on the occurrence of the Accident, I assume that they will want to cross-examine Mr Chan.   They are entitled to do so.  I do not see how they could effectively do so without putting in evidence Dr Chung’s report.  Without Dr Chung’s report, there will be no evidence to rebut the Technical Report and Mr Chan’s oral evidence.

40. In the circumstances, I am unable to say that Dr Chung’s report is plainly irrelevant or of no probative value.

VI. DR WONG’S REPORT    

41.   Moving onto Dr Wong’s report, the entire section under the heading “Automatic Safe Load Indicator” (pp.3-4) is inadmissible for irrelevance.  It is presumably a response to the Plaintiff’s allegations of failure to ensure that the Crane was not used unless it was fitted with an automatic safe load indicator that had been inspected by a competent person and determined to be in safe working order and of failure to ensure that the Crane was not used unless it had clearly and legibly marked on it the safe working load at various radii of the jib.  Even if the Defendants had so failed, such failure is irrelevant to liability for the Accident.  The Crane had in fact not been overloaded. 

42.   Likewise, Dr Wong’s response to the suggestions that Chain B was too small and the pulling force on it exceeded the recommended maximum load for Chain B [paragraph 7(e)] appears to me to be irrelevant.  As a matter of fact, Chain B did not break.

43.   Other parts are inadmissible as they contain factual matters which Dr Wong knows of only from instructions, e.g. the provision of working procedures, training and training materials for safe lifting by the Defendants (p.2); the Deceased’s experience in rigging and lifting operations (p.3); Mr Lam’s qualification for and experience in operating the Crane (p.3); that there was no reason to suspect or doubt the Deceased or Mr Lam’s competence and that the need to provide further supervision was considered unnecessary (p.3) and the availability to the Deceased and his co-workers of suitable lifting gears like brother slings with a master ring (pp.4 and 6).

44.   Certain comments amount to submissions, e.g. that chains that are designed for lashing can be used for lifting if the safe working load is not exceeded and that there is no restriction on the use of lashing chains for lifting purposes (p.5) and that there is no evidence to show that the “hooking back” arrangement of Chain A had reduced the capacity of the chain to such an extent as to cause its failure [paragraph 7(c)].  Incidentally, the second-mentioned observation may be regarded as being inconsistent with Dr Chung’s view on the effect of “hooking back”.

45.   In short, the only statements of opinion expressed by Dr Wong within his area of expertise are:

(1) The lifting operation in question is simple.  Experienced riggers would have come across them frequently in their daily work (pp.3 & 6). 

(2) An assessment of the safety of the system of work should be conducted on the basis that it was a simple lifting operation undertaken by 2 experienced workers (p.6).

(3)     All reasonable steps had been taken to ensure the safe lifting of the Truck (p.6).

(4) The Deceased’s use of chains not designed for lifting and an inappropriate rigging configuration could not have been foreseen by anyone (p.7).

46. As said earlier (paragraph 22 above), once the physical cause of the Accident (whatever it is) is found, consideration and determination of the further question as to whether such cause was brought about by lack of a safe system of work in the circumstances of the Accident is really a matter of common sense and within the knowledge and experience that one can expert of a judge without the assistance of expert evidence.  To put it bluntly, the court does not need Dr Wong or any other experts to give it the 4 points mentioned in the preceding paragraph if the factual premises underlying those points are established.

47. I was initially concerned that the trial judge would have the Accident Report which covers the industrial safety aspect.  This has, however, been addressed by the Plaintiff’s concession regarding the admissibility of the opinion portion of the Accident Report (paragraph 22 above).   

VII.    CONCLUSIONS

48. For the above reasons, I allow the appeal relating to Dr Chung’s report and dismiss the appeal concerning Dr Wong’s report with consequential directions as follows:

(1) that leave be given to the 1^st, 3^rd and 4^th Defendants to file and serve Dr Chung’s report within 7 days from the date of this Order;

(2) leave be given to the Plaintiff and the 2^nd Defendant to file and serve expert reports in response to Dr Chung’s report, if any, within 42 days thereafter.

49. I also make an order nisi that the costs of the application before Master B. Kwan be costs in the cause and that the costs of this appeal be to the 1^st, 3^rd and 4^th Defendants in any event, both to be taxed if not agreed.

50. Lastly, the Plaintiff’s own costs should be taxed in accordance with the Legal Aid Regulations.