CHAN WAI KIT v. LI PAK WAH AND ANOTHER

HCPI 246/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 246 OF 2007

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REASONS   FOR   DECISION

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1.  The issue at this Pre-Trial Review is the admission of expert evidence on liability.

2.  At the hearing, I disallowed the Defendant’s proposed expert report (and hence the Plaintiff’s report in reply), and ruled that in principle expert evidence on the general effect of overloading of the Plaintiff’s vehicle on braking be admitted without postulations on speed and braking distance.  I now give my reasons.

Background

3.  The Defendant’s heavy goods vehicle (“HGV”) changed lane from left (1^st lane) to right (2^nd lane) in front of the Plaintiff’s light good vehicle (“LGV”).  The LGV’s front collided with the rear of the HGV, then the LGV swerved left and collided with 2 other medium goods vehicle (“MGV1” in front and “MGV2” behind) on the 1^st lane.  The LGV finally stopped upon colliding with the slope on the left.

4.  The Plaintiff told the police that he the Defendant’s HGV cut in at its front at close distance (about 10 m).  He tried to brake but the LGV could not stop, and he stood up to step on the brake but collision still occurred.

5.  The Defendant told the police that a black car cut in from the 2^nd lane to the 1^st lane in front of the vehicle(s) in front of him (i.e. MGV1 and/or MGV2).  He anticipated the vehicle(s) would brake to a halt and he knew he could not stop in time.  Hence, he changed from the 1^st lane to the 2^nd lane to avoid a collision.  He had entered the 2^nd lane completely when his rear was hit by the Plaintiff’s LGV.  He only looked at the right rear vision mirror but did not take any other action upon changing lane.

6.  The driver of the 2^nd next vehicle behind the Plaintiff told the police that the HGV changed slowly from the 1^st lane to 2^nd lane at close distance to the LGV and straightened up before collision, and then the LGV hit 2 MGV’s on the 1^st lane and did not stop until it hit the slope.

7.  The driver of MGV2 told the police that before the collision, he saw from the right rear vision mirror that the HGV was almost abreast with the LGV, and the HGV changed quickly from the 1^st lane to 2^nd lane.  He did not see any black car cutting in front of it nor see it pass on its right.

8.  The driver of MGV1 told the police that he did not see any black car cutting in front of it nor see it pass on its right.

9.  The Government Motor Vehicle Examiner (“MVE”) found the Plaintiff’s LGV was 36% over-laden, and the Plaintiff was convicted of driving an over-laden vehicle.  The MVE found that the braking efficiency of the LGV was 60%, while normally at 82% with permitted load.

Relevant principles

10.  The function of the expert is to furnish the Court with the necessary scientific criteria and assistance based upon special skill and experience not possessed by layman to enable the judge to interpret the factual evidence of the accident.  The expert is not entitled to conclude from statements of eye witnesses that the defendant (or the plaintiff) was going at a certain speed at a certain point, which are facts for the trial judge based on evidence he accepts and inferences on the primary facts found (see Liddell v Middleton [1996] PIQR P36 per Stuart-Smith LJ at p. 42).

11.  Matters such as the speed that the plaintiff was travelling and the driver’s responses are matters for the judge to find after hearing the evidence and they are not matter which the trial judge would need expert evidence to assist him (see Tong Ho Wing v Wong Fuk & Ors HCPI 1369/1999 per Suffiad J at p. 11).

12.  No amount of expert evidence is going to tell the trial judge anything approaching precision the approach speed or impact speed or the distances of the vehicles (see Fong Sai Ho v Hairfast Co Ltd & Ors HCPI 1199/2003 (4 March 2005) per DHCJ Carlson at para. 16).

13.  In some cases, expert evidence is necessary and desirable to assist the judge in reaching primary finding of facts such as speed of the vehicles, e.g. where no witness is capable of describing what happened and deductions have to be made from circumstances such as position of vehicles, road marks, damage to vehicles (see Liddell v Middleton at p. 42).

Defendant’s case

14.  The Defendant’s proposed expert, Dr. Eric Lim, opined:

(1)     The impact occurred after the Defendant’s HGV completely or almost completely in the 2^nd lane, resulting in the need for the Plaintiff to take evasive action;

(2)     The collision could have been avoided had the Plaintiff’s LGV been loaded to the permitted load and the braking system achieving a brake efficiency of 82% with approaching speed at 60 KPH and if the Plaintiff had reacted promptly;

(3)     The overloading of the Plaintiff’s LGV contributed significantly to the occurrence of the accident and also the extent of its damage.

15.  Dr. Lim also said higher vertical load could reduce thee coefficient of friction.

Plaintiff’s case

16.  Miss Chih, for the Plaintiff, agreed that the fact of overloading of the Plaintiff’s LGV might be relevant, but the respective speed and the distance of the two vehicles are matters for the Court alone.

17.  The Plaintiff’s proposed expert, Prof. Joseph Lai, pointed out that under the Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A), the minimum braking efficiency required is 50%, and the MVE Report indicated the braking efficiency was satisfactory.  He also suggested that any impact on braking efficiency by reason of overloading may be partly or wholly offset by the increase in friction.

Discussion

18.  This is not a case where there is no eye witness to the accident.  Apart from the parties themselves, there are other drivers who have described how the accident happened.

19.  The defence is that defective braking caused by overloading of the Plaintiff’s LGV has caused or substantially contributed to the collision.

20.  The Defendant’s expert, Dr. Lim, tried to assess the distance travelled by the LGV after the Plaintiff noticed the lane changing manoeuvre of the Defendant’s HGV, and he postulated that distance was longer than the braking distance of the LGV at normal braking efficiency (82%), but shorter than the braking distance with reduced efficiency (60%).

21.  However, Dr. Lim said the assessment on how the overloading could have contributed to the accident depended on how far the vehicles were apart when the HGV pulled in front of the LGV, and how fast they were travelling prior to the impact.

22.  Dr. Lim did his calculations taking the Plaintiff’s stated speed of 60 KPH and distance of less than 10 m between the HGV and the LGV after the lane change.  And he made a number of assumptions:

(1)     Depending on the speed of the HGV, the lane change would have taken at least 3 seconds given that the HGV had completed the lane change as indicated by the parallel points of impact of the 2 vehicles as observed in the MVE report;

(2)     Assuming the Plaintiff was alert, he would have applied his brake within the reaction time of 0.9 seconds;

(3)     Assumption that the Defendant travelled at a constant speed in the lane changing manoeuvre.

23.  Prof. Lai, on the other hand, suggested that:

(1)     Dr. Lim failed to draw the distinction that braking distance for trucks is longer than cars;

(2)     While 3 seconds may a reasonable time for lane changing in normal traffic condition, it is an unreasonable assumption in lane change to avoid anticipated collision ahead;

(3)     Dr. Lim’s calculations would change depending on the speed of the Defendant’s HGV, and for the Defendant’s speed at between 33 KPH and 53 KPH, the distance between the 2 vehicles could be between 4 to 16m.

24.  Dr. Lim’s conclusion not only drew impermissible references from the statements of witnesses, it also made assumptions including the speed of the Defendant’s vehicle.  That is a fact to be found by the judge.

25.  To take a step back in an overall view, the expert postulations premised on the time lapse of 2.1 or 3 seconds, and trial in road accident is not the type of matter to be approached with such precision as opposed to controlled laboratory tests.  It will eventually be the findings of the judge after hearing evidence from all the witnesses and taking into account all the circumstances of the case.

26.  In the premises, the Defendant’s expert report is disallowed.

27.  However, as Ms Chih had indicated prima facie relevance of overloading, I ruled that the experts may prepare a joint report for further consideration on the general effect of overloading over a range of speeds and distances (if feasible), its effect on the coefficient of friction, and the relevance of the minimum braking efficiency under Cap. 374A.

Costs

28.  I ordered that the Defendant do pay costs in the gross sum of $7,500 to Plaintiff and that would take care of the costs of all expert reports.