LEE WING YIN v. LEUNG KAM CHAU AND ANOTHER

HCPI 399/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 399 OF 2007

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D E C I S I O N

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1.  This case has been referred to me on Pre-trial Review to determine:

(a)  whether certain evidence is expert evidence on liability;

(b)  if so, whether they should be admitted notwithstanding the Master’s order that there be no expert evidence on liability.

2.  The plaintiff was hit by a Light Rail Transport (LRT) vehicle.  Her case was that she looked and saw the way was clear, but she was hit as soon as she took a few steps onto the rail crossing.  The defence case is that the plaintiff did not look carefully and she hurried onto the railway, and the approach of the LRT vehicle was blocked by her own umbrella.

3.  The evidence in question came from Mr Andrew Tam, Chartered Engineer, employee of the 2^nd defendant.  Mr Tam’s evidence contained two distinct parts.  The first part was the so-called black box evidence of the actual speed, application of brake and sounding of horn of the LRT vehicle in question prior to the accident.  This is factual.

4.  The second part was braking distances by the LRT vehicle by the application of the service brake or, alternatively, the emergency brake. 

5.  Mr Ramanathan, for the defendant, submitted that such evidence was brought in not as an opinion, but as the factual background bearing in mind the particulars of negligence pleaded by the plaintiff that the 1^st defendant driver failed to stop in time to avoid hitting the plaintiff.

6.  I asked Mr Ramanathan what conclusion would the braking distances lead to.  He said there is no particular conclusion, either being suggested by Mr Tam or by counsel at this stage.  They are just braking distances of the LRT vehicle at different speed, as one would have found in the Highway Code for a motor vehicle.  Since the vehicle in question was a track vehicle where no swerving was allowed, those data might be relevant in case the braking distances were ever enquired into at the trial.

7.  Mr Lam, for the plaintiff, did not strongly object to such evidence as factual background, but pointed out that another set of braking distances had previously been disclosed in the draft statement of Mr Tam.

8.  Mr Ramanathan clarified that the draft statement had not been signed, and those different figures previously disclosed were maximum braking distances extracted from the technical data for the LRT vehicle,  the source material had been disclosed to the plaintiff by correspondence. 

9.  Mr Ramanathan said the braking distances now proffered are result of tests conducted by Mr Tam.  They are shorter distances than those in the technical data, hence, a more stringent case for the defendant (everything being equal).  There would not be any prejudice to the plaintiff.

10.  I note that braking distances are factual technical data which might be helpful for the trial judge.  When dealing with stopping distances, conclusion will seldom be reached without the evidence on the reaction of the driver.  But I can see that in the case of a car or a bus, the stopping distances would be available from the Highway Code, and such materials would not be objectionable.  Hence, I would allow the stopping distances to go in as evidence of the technical data of the LRT vehicle in question.