Lau Kwai Yin v. Tack Hsin Restaurant (London) Ltd and Another

HCPI 927/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 927 OF 2013

---------------------------

---------------------------

---------------------

D E C I S I O N

---------------------

1.This is an appeal by the plaintiff against the order of Master Leong made on 11 February 2015, dismissing the plaintiff’s application for leave to adduce into evidence an expert report on liability by Dr Eric Lim (“Dr Lim”) dated 27 May 2013.

2.In this action, the plaintiff claims damages for personal injuries sustained by him as a result of an explosion which occurred on 12 April 2009.  At the time, he was employed by the 1^st defendant as a dim sum chef in their restaurant kitchen.  It is pleaded in §8 of the statement of claim that, at about 3:30 pm on that day, he was about to deep fry some food, using the wok range on which a wok that was half-filled with hot cooking oil had been placed.   When he switched on the main burner valve, there was a sudden explosion and the wok toppled over.  The hot cooking oil in the wok spilled out and splashed all over the plaintiff who sustained severe scaldand burn injuries.  

3.The 1^st defendant employer simply states in §10 of its defence that:

“ Paragraph 8 of the Statement of Claim is noted.”

Such an averment is neither a denial nor a statement of non-admission.  The general traverse contained in §22 of the defence of the 1^st defendant that:

“Save as herein before expressly admitted or not admitted, each and every allegation made in Statement of Claim as against the 1^st Defendant is denied as if the same were set out herein and traversed seriatim”

cannot be construed as having the effect of denying the allegation of fact contained in §8 of the statement of claim.    

4.A general traverse can be conveniently deployed to deal with a long and complicated statement of claim or counterclaim, containing multiple allegations which are less immaterial.  It should not be adopted in dealing with an essential allegation and it will not be construed as covering an essential allegation: see Jim Mai Gi v Choy Kwun Ping [1981] HKLR 674; Kwangtung Provincial Bank v Tang Chik Leung [1985] 1 HKC 93.  Accordingly, in the absence of a specific traverse of §8 of the statement of claim by a denial or a statement of non-admission, the averment contained in §8 of the statement of claim is deemed to be admitted by the 1^st defendant employer.

5.The 2^nd defendant was a registered gas installer and maintenance contractor of the wok ranges installed and used in the kitchen.  In its defence, the 2^nd defendant has specifically not admitted §8 of the statement of claim.  The 2^nd defendant’s staff was not present at the time of the accident in question and the 2^nd defendant cannot adduce any evidence of what happened at the relevant time.

6.Given the current state of the pleadings, I proceed to deal with this appeal on the basis that the trial judge is likely to find, as the plaintiff has averred, that there was a sudden explosion when he switched on the main burner valve, resulting in the wok toppling over, and hot cooking oil being spilled onto him.

7.The accident was investigated by Hong Kong and China Gas Company Limited (“Towngas”), the Electrical and Mechanical Services Department (“EMSD”) and the Labour Department, as well as the 2^nd defendant.  Subsequently the Labour Department disclosed its accident report dated 2 July 2009 and the declarations, made in April and May of 2009, by the plaintiff; Mr Lai Chak Chi, the manager of the 1^st defendant; Mr So Chuk Ning, the supervisor of the plaintiff; and Mr Chong Wai Yip, the technician of the 2^nd defendant who had carried out an inspection of all gas appliances at the restaurant kitchen of the 1^st defendant on 11 April 2009, the day before the explosion.  The Labour Department also provided two computer discs containing numerous photographs.

8.Towngas has disclosed its incident report dated 20 April 2009.  EMSD refused to provide any discovery of its documents to the parties in this case, until it was faced with a specific discovery summons issued by the 2^nd defendant.  The plaintiff and the 1^st defendant supported the application but did not appear at the hearing of that summons.

9.Master Leong handed down his decision dismissing the plaintiff’s application for leave to adduce the report of Dr Lim on 11 February 2015.  The summons for specific discovery against EMSD was heard on 26 February 2015 when the 2^nd defendant and the Department of Justice reachedagreement for this summons to be withdrawn with no order as to costs, consequent upon EMSD providing, on 25 February 2015, a summary of its investigation.

10.Master Leong did not have the benefit of perusing this summary as it was only disclosed after his decision.  As the summary was only obtained after the decision appealed against was handed down, I can have regard to it at the hearing of the appeal, which, in any event, is a hearing de novo.

11.In the course of the hearing of the appeal before me, Mr C K Wong made the submission, on behalf of the 2^nd defendant, that I should adjourn the appeal until further discovery was obtained from EMSD or Towngas.  I then directed the parties to furnish me with the correspondence that they had exchanged with EMSD and Towngas seeking discovery of documents in their possession relating to their investigations of the explosion.  I informed the parties that, after my consideration of such correspondence, I would then either direct that the hearing of the appeal be adjourned pending further discovery applications to be made or, if I did not accede to Mr C K Wong’s submission, that I would come to a decision on the appeal and hand down my decision in due course.

12.On 29 October 2015, I received letters from the solicitors for the plaintiff and the 2^nd defendant enclosing their correspondence with Towngas and EMSD for discovery of documents relating to their investigations.  After my perusal of that correspondence, the incident report provided by Towngas and the summary of its investigation provided by EMSD,  I have come to the firm view that, even if further discovery applications could successfully be made against EMSD,  that any further documents disclosed were unlikely to provide any further assistance into the causes of the explosion. For that reason, I do not accede to the application made by Mr C K Wong, and I proceed to deal with the appeal from Master Leong’s decision.

13.The following is extracted from the accident report dated 2 July 2009 prepared by Mr Yim Chik Po of the Labour Department:

“1. Background information

Since November 2006, Tack Hsin Restaurant (London) Limited operated a Chinese restaurant named Tack Hsin Restaurant (Causeway Bay) at the subject premises. There were number of wok ranges installed inside the kitchen. These wok ranges were installed by a company named Wing Sing Kitchen Equipment Limited (Wing Sing). If the wok ranges had any functional problem, the restaurant would call Wing Sing for the maintenance work.

Starting from April 2009, an agreement was reached between the restaurant and Wing Sing. Wing Sing would inspect the wok ranges once a month. On 11^th April 2009 (a day before the day of accident), Wing Sing deployed its technician Mr. CHONG Wai Yip to inspect the wok ranges. On that day, Mr. CHONG had inspected the subject wok range (Photograph A).

The subject wok range was a single-burner wok range that was used for deep frying. To ignite the wok range, I/P had to switch on the pilot flame valve (Photograph B). Then gas would be supplied to the pilot flame gas hole (Photograph C). Once I/P pressed the pilot flame ignition switch (Photograph B), a pilot flame would be ignited. A pilot flame had to be maintained throughout the operation of the wok range.

A pilot flame disc was placed on the top of pilot flame gas hole (Photograph D) and made the pilot flame [burn] around the main burner. A burner ring was placed on the top of pilot flame disc (Photograph E). The burner ring was used to confine the fire at the centre of the combustion chamber. When I/P needed to deep fry anything, he would switch on the main burner valve (Photograph B) and gas would be supplied to the main burner. Then the gas would be ignited by the pilot flame and the wok range would be ready to be used.

By the time Mr. CHONG inspected the subject wok range, he discovered that gas holes of the main burner (Photograph C) were slightly blocked and the burner ring was broken. He cleared the blocked gas holes and replaced the [burner ring]. Then he adjusted the orientation of the pilot flame disc to make the pilot flame [burn] evenly. After that, he inspected the wok range again and found it in normal condition.

The subject wok range was equipped with a safety device: flame failure device (Photograph F). When the pilot flame went off, the temperature inside the pilot flame disc would go down. Once the device detected the temperature change, the gas supply would be automatically cut off within 16 seconds. No gas would be supplied to the main burner even [if] the main burner valve was switched on. The device had been inspected after the accident and no abnormality was found.

Wing Sing was a registered gas contractor under the Gas Safety (Registration of Gas Installers and Gas Contractors) Regulations (Cap. 51D). Mr. CHONG Wai Yip was a registered gas installer under the same Ordinance. He had a full [licence] and was competent to perform the subject work.

2. Circumstances

On the day of accident, I/P reported duty on 0430 hours. His major duty was using the subject wok range to deep fry food. He ignited a pilot flame in the wok range as usual and no abnormality was found. The wok range was functioned properly till 0800 hours. After that, he discovered that the pilot flame had gone off. He ignited the pilot flame again and found a flame (2.54cm in length, Photograph G) appearing outside the burner ring. He had never seen this before so he reported this to his supervisor, dim sum section in-charge Mr. SO Chuk Ning. Since the wok range was still functioning properly, he continued his work.

At 1030 hours, I/P discovered that the pilot flame had gone off again. He ignited a pilot flame again. At that time, he still saw a flame outside the burner ring. Then he asked Mr. SO when the wok range would be repaired. He was told that manager Mr. LAI Chak Chi had already requested Wing Sing to come to repair the wok range. As such, he continued his work. The wok range functioned properly till 1520 hours.

At the material time of accident, I/P was going to deep fry some food. He put the food into a wok that was placed on the wok range (Photograph H). At that time, about half of the wok was filled with hot cooking oil. Once he switched on the main burner valve, an explosion occurred inside the combustion chamber and the wok was toppled over. The hot oil inside the wok splashed out and onto I/P. At such, I/P sustained the aforesaid injury.

3. Factual findings

On 14^th April 2009, functional/simulation tests and examination to the subject wok range were conducted in the company of staff of Wing Sing, Electrical and Mechanical Services Department (EMSD) and Hong Kong and China Gas Company Limited (Towngas). No abnormality was found during the functional test. Various scenarios were simulated during the simulation tests. However, the said problem was not repeated.

4. Observations and conclusion

On 12^th April 2009, immediate after the accident, the subject wok range was inspected by the staff of Wing Sing, EMSD and Towngas. No abnormality was found during the inspection. The gas piping installation and other gas appliances at the scene were also inspected. No defects or gas leakage were detected. Nevertheless, the operation of the wok range was suspended.

On 15^th April 2009, all the major components of the subject wok range were replaced. After that, the wok range was tested and no abnormality was found. The gas supply to the wok range was resumed.

After a number of functional and simulation tests were conducted by EMSD and Towngas, both parties came to the same conclusion that the cause of the accident could not be identified.

On the day of accident, I/P had observed that there was a leak of the pilot flame outside the burner ring. As confirmed by EMSD and Towngas on 14^th April 2009, such leakage was probably due to the misalignment of the pilot flame disc and should not be the cause of the accident. I/P also observed that the pilot flame had gone off twice. However, this also should not be the cause of the accident.

At the material time of accident, if the pilot flame had already gone off, there would be no ignition source. No explosion would have occurred even when I/P switched on the main burner valve. On the other hand, if the pilot flame was still burning, [once] I/P switched on the main burner valve, the wok range would be in normal operation and no explosion would [have] occurred.

As the subject wok range had been tested and examined by EMSD and Towngas repeatedly after the accident and no abnormality could be observed, the cause of the accident could not be ascertained.

5. Prevention recommended

Nil.”

14.It appears from the incident report of Towngas dated 20 April 2009 that they had an emergency hotline which received a message from Mr Yip of EMSD at 1655 hours of 12 April 2009 stating that a chef suffered from a 20% scald injury when using a gas appliance at the 1^st defendant’s restaurant premises.  An emergency team reached the scene at 1710 hours.  The following is an extract from the Incident Report:

“Incident Details

The following information is obtained from [a] Mr. Lau Kwai Yin:

1. On 11 April 2009, Fitter Chong Wai Yip, RGI30981205 of Wing Sing replaced the pilot ring cover and the burner ring of the wok range.

2. On 12 April 2009, the Chef Mr. Lau Kwai Yin (57) used the wok range for deep frying. The pilot flame was kept always on from the early morning. He then turned on the main burner valve for deep frying upon receiving orders. Before the incident, there was several times no gas coming out when he turned on the main burner. He had to ignite the pilot flame again. At 1445 hr, the manager of Tack Hsin called Wing Sing to check the wok range.

3. At 1455 hr (i.e., before the arrival of Wing Sing’s fitter), Chef Lau turned on the main burner again (around 10 min after the last operation). A big ‘bang’ sound came from the combustion chamber and the wok (half filled with hot oil) was expelled upwards and returned to the wok support. However, the hot oil poured over the back of Chef Lau.

Site Investigation

The concerned Chinese wok range was in sound condition. It was equipped with a 4” diameter air blast burner and flame failure device [(FFD)]. The FFD was in normal working condition. It cut off the gas supply in 16 seconds after the pilot flame had been turned off. We tested the wok range again. It was in normal working condition. We could not repeat the said problem even repeatedly turning on and off the main burner valve in different duration.

Actions Taken

After the inspection, we capped off the Chinese wok range (DGI notice 248865) and left at 1840 hr.

On 14 April, a joint site inspection with EMSD and LD officials was conducted. We again tested the Chinese wok range. We set the pilot cover [of] the wok range in different orientations and then repeatedly turned the main burner valve on and off for several times. We still could not repeat the said problem.

As the cause of the incident could not be identified, it was recommended that all major components of the wok range should be replaced.

At around 1600 hr on 15 April, the burner base, pilot cover, burner cap, burner crown, pilot and FFD were replaced by Wing Sing’s fitter.  The wok range was tested and confirmed in normal working condition.  The gas supply to the wok range was resumed.”

15.The summary received from EMSD after the decision by Master Leong did not add much more to the contents of the earlier two reports.  It appears from that summary that EMSD received notification at 1645 hourson 12 April 2009 of the gas related incident occurring at about 1500 hours earlier that day, resulting in scald injuries to the plaintiff as a result of oil being splashed over his body from a “bouncing Chinese wok”.

16.Their gas safety inspector arrived at the scene at about 1735 hours on 12 April 2009 and conducted an investigation into the incident. They returned on 14 April 2009 for further tests and examination of the subject Chinese wok range.  The test indicated that the Chinese wok range was “in sound condition and no malfunction or defects were found from the Chinese wok range concerned.”

17.According to the plaintiff, and there is nothing in the investigation reports to suggest to the contrary, he suffered scald injuries when an explosion occurred in the combustion chamber of the gas appliance he was using, which caused the oil filled wok to topple and which resulted in hot oil being splashed onto his body.

18.Although the plaintiff pleaded that the doctrine of res ipsa loquitur applied to the present case, both defendants have denied its application.  On the other hand, the report from the Labour Department suggested that no defect or abnormality of the gas appliance could be observed and that the cause of the explosion could not be ascertained. The Incident Report from Towngas dated 20 April 2009 also stated that the cause of the incident could not be identified.  The plaintiff’s legal advisors had received that report on 2 January 2013.

19.In these circumstances, the plaintiff’s legal advisors instructed Dr Lim to prepare a report on the causes of the explosion, and whether or not there were any acts or omission on the part of the defendants which contributed to the explosion.

20.Dr Lim prepared his report dated 27 May 2013.  His qualifications appear in Appendix I of that report.  He is well experienced in the investigation of fire and explosion incidents, and well qualified to provide expert opinion to the court on the causes of such events.

21.Although Dr Lim never examined the gas appliance in question, he had access to the reports from the Labour Department, the declarations taken by the Labour Department and the Incident Report from Towngas.  He also had access to all the photographs taken by the Labour Department.

22.Dr Lim summarised the features and the operation of the wok range in §4.3 of his report as follows:

“4.3 The Wok Range

4.3.1 The Wok Range had a combustion chamber on top of which a wok was placed. The main burner was at the centre of the base of the combustion chamber. A pilot gas tube coupled with a flame failure sensor was fitted at the rim of the main burner. A donut-shaped pilot flame disc was placed on top of the main burner rim to spread the pilot flame around the main burner. A burner ring which was used to confine the main burner flame at the centre of the combustion chamber was placed above the pilot flame disc.

4.3.2 In order to ignite the Wok Range, one has to turn on the pilot gas valve switch and thereafter pressing the pilot ignition switch to activate supply of gas to the pilot gas tube and simultaneously generate sparks to light the pilot flame.

4.3.3 After the pilot flame had been lit, the main burner valve could be turned on to supply gas to the main burner and the gas would be lit by the pilot flame and the Wok Range would be ready for operation. The pilot flame, once lit, stays lit even when the main burner valve was turned off such that cooks could turn on the main burner by turning on the main burner valve at any time to facilitate their work.

4.3.4   The burner of the Wok Range is also fitted with a flame detector that would shut down the gas supply to the Wok Range whenever it detects that there is no flame in the combustion chamber so that no gas would be supplied to both the pilot flame and main burner to avoid un-burnt gas being released.”

23.He summarised the salient facts that he had elicited from the declarations taken by the Labour Department in the following paragraphs of his report:

“4.4 LAU stated that he reported for duty at about 0400 hours on 12 April 2009 as usual and operated the Wok Range which was found to work normally. At about 0800 hours, LAU found that the Wok Range did not work because the pilot flame had gone out. LAU used an ignition gun in an attempt to light the pilot flame and it took a long time to have the pilot flame lit during which there was a one inch small flame jet from the pilot flame disc. LAU had never seen such flame jet but he ignored it and continued his work. LAU then reported the problems of the Wok Range to his supervisor. At about 1030 hours, the Wok Range did not work again and LAU lit the pilot flame again and also noted a one inch small flame jet coming out from the pilot flame disc. He reported to his supervisor again and required the latter to arrange for repairs. He was told to continue to use the Work [Range] for the time being and that arrangement for repair had been made.

4.5 LAU did not find any further problem with the Wok Range until 1520 hours when he prepared to deep fry some food. At the material time, a wok which was half filled with hot cooking oil was placed on top of the Wok Range. An explosion occurred in the combustion chamber when LAU turned on the main burner valve. During the explosion [the] wokwas toppled andthe hot cooking oil splashed to cause burns to LAU.

4.6 CHONG Wai Yip (“CHONG”) who was a registered gas installer was an employee of WING SHING which provided maintenance services to the restaurant since April 2009. On 11 April 2009, CHONG and another colleague were reportedly instructed to carry out monthly inspection of all stoves installed at the restaurant, and the following works had reportedly been conducted on the subject Wok Range:

4.6.1 CHONG inspected the Wok Range and found that the pilot gas tube orifice was slightly clogged. CHONG used a pin to “repair” the clogged orifice.

4.6.2 CHONG also replaced the burner ring which had reported broken into two pieces and he also adjusted the position of the pilot flame disc such that the spread of the pilot flame could be more even.

4.7    After the repair, the Wok Range was checked by staff of the restaurant to be working properly.  On 12 April 2009, CHONG arrived at the restaurant at about 1630 hours after the accident.  CHONG attempted to light the pilot flame and it took 30 seconds to light the pilot flame.  Normally, it would take about 10 seconds to light the pilot flame.  Staff of EMSD arrived at about 1730 hours and conducted same tests with same results.  Staff of Towngas arrived at about 1800 hours and found that the Wok Range was operating normally and all components were functioning properly.”

24.If the trial judge were to conclude at trial that an explosion had occurred in the combustion chamber of the gas appliance that resulted in the toppling over of the oil filled wok, then it is likely that he will also conclude that the occurrence of the explosion indicated that a significant volume of un-burnt gas as well as an ignition source, either in the form of heat or in the form of sparks, co-existed inside the combustion chamber to produce the explosion (see §5.2 of Dr Lim’s report).   

25.The difficulties the court would face would be to ascertain how it would possible for un-burnt gas to accumulate in the combustion chamber and for a heat source to co-exist with it.  The malfunctioning pilot flame ought not to be the cause of the explosion.  As the Labour Department officer had observed, if the pilot flame had already gone off, there would be no ignition source to cause the explosion.  On the other hand, if the pilot flame had not gone off, once the main burner valve was switched on, the gas supply to the wok range would have been lit by the pilot flame, such that there could be no accumulation of un-burnt gas. Without such accumulation, no explosion could occur.  The flame failure device was inspected after the accident with no abnormality found.  If the pilot flame went off, the temperature inside the pilot flame disc would decrease, and the device would detect the temperature change and automatically cut off the gas supply within 16 seconds. Without such a gas supply, there could not be an accumulation of un-burnt gas to cause the explosion. And, as stated above, with the pilot flame off, there could be no ignition source. 

26.Dr Lim quite frankly admitted in his report that the cause of the accumulation of gas was not as clear as the cause of the pilot flame going out (at §5.3.2).  Although the flame detector was reported to be working properly, and although no gas leakage was detected on any of the gas supply pipes in the kitchen by the investigators after the accident, the fact of the explosion strongly suggested that a significant amount of gas had somehow accumulated in the chamber.  He opined that a possible cause for gas being supplied into the combustion chamber, at a time when the pilot flame had gone off, could be “incomplete closure of the safety gas valve controlled by the flame detector” that should have been activated to close the gas supply.  This could happen if there was some debris that prevented the complete closure of the valve.  Such debris could have been blown off by the explosion, with the result that the incomplete closure of the valve was not detected in the subsequent investigations.  If, in addition to this defect, the operator did not fully turn the main burner valve handle to a ‘closed’ position, it could allow a small quantity of gas to leak through slowly into the chamber and, with the wok being placed on top of it, the combustion chamber could become a closed space in which a significant amount of gas accumulated. 

27.Equally, if not more, difficult to understand is that nature of the ignition source which caused the explosion. Dr Lim opined that one possible cause was that the plaintiff could have pressed the pilot flame ignition switch, or had used an igniter in an attempt to ignite the gas, after he turned on the main gas valve and found no flame inside. Alternatively, the accumulated gas could have been ignited by another ignition source such as an electrical spark.

28.If the trial judge agrees with the defence case that the doctrine of res ipsa loquitur does not apply to this case, he or she would be left with a very difficult task of trying to ascertain the cause of the explosion and whether or not any party was to blame for it.  The fact that EMSD and Towngas could find nothing wrong with the wok range afterwards is some evidence to support the defence case that the wok range was not defective.  If so, why and how did the explosion occur?  Without the assistance of expert evidence, the court might be left with not much choice but to conclude that the plaintiff has failed to prove his case against the defendants.  Therefore, to deny the plaintiff’s application to adduce expert evidence in this case would cause injustice.   That is not to say that the court must accept that expert evidence.  The trial judge will have to weigh the opinions of Dr Lim and the opinion of the defendants’ expert before making his findings of fact.  He may well prefer the opinion of the defendants’ expert.

29.The fact that Dr Lim and the defendants’ expertdid not have an opportunity to examine the wok range in question does not disqualify them from offering their expert opinion based on the statements of witnesses, the investigation reports on the incident and the photographic evidence collected.  Lam Mo Bun v HK Aerosol Co. Ltd., HCPI 1313 of 1999, 22 March 2001, concerned an explosion in a washing machine at the plaintiff’s kitchen.  EMSD suspected that the explosion had been caused by an accumulation of gas from insecticide sprayed in the kitchen.  The court received opinion evidence from the experts although they had not inspected the washing machine and the scene of the explosion.  Expert evidence is admissible whenever there is sufficient factual material for the expert to consider as would enable him, applying his expertise to such material, to render a meaningful opinion which may be of assistance to the court.  Experts must be alive to and discharge their duties to the court.  If the available factual material is insufficient to enable the expert to offer a meaningful opinion on the matter, he or she must be forthright about it and say so.

30.The learned master also based his decision on the implausibility of the explanations offered by Dr Lim.  However, when seemingly impossible events occur the search for an explanation often requires the consideration of implausible scenarios.  All the matters raised before Master Leong, and set out in his decision, about the implausibility of Dr Lim’s various opinions will fall to be considered in conjunction with opinion of the defendant’s expert on the cause of the explosion.  It may well be that, at the end of the day, the trial judge is unable to accept the evidence of either expert.  But that possible eventuality does not provide any basis for the conclusion that such expert evidence is inadmissible.  Of course, if the expert opinion is clearly devoid of any merit and without any probative value, then leave must not be granted to admit it.  Dr Lim’s opinions do not fall into this category such that it should be summarily rejected.

31.I reflected the post-CJR position on the admissibility of expert evidence in §§9 to 21 of my decision in Fung Chun Man v Hospital Authority, HCPI 1113/2006, 24 June 2011.  In summary, the expert evidence must be in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate.  I identified the different approaches to be adopted with expert evidence on quantum and expert evidence on liability in §9 of my decision in Tang Tak Ping v Kai Shing Construction Co. [2012] 1 HKLRD 1093, 6 February 2012, where I stated:

“9. In medical negligence cases, and in industrial accident cases where expert evidence on liability is required, sequential exchange of expert reports, as opposed to a joint approach, was and continues to be the norm (see §§ 24 to 32 of the judgment of Chu J, as she then was, in I & L & Anor [2005] 4 HKLRD 301). Indeed, §66(10) of PD 18.1 replicates its predecessor in §5.2(v) of the previous PD 18.1 in requiring the plaintiff to serve with his statement of claim “in all medical negligence cases, a copy of any expert medical report relied upon as to liability and causation". Clearly, in such cases, and in industrial accident cases where expert evidence on liability is required, the plaintiff can commission an expert report from his liability expert without leave of court and without agreement of the other party, and can do so without risking the adverse consequences set out in §70 of PD 18.1, unless, of course, the circumstances of the case are exceptional and warrant a joint report on liability. I made it clear in Liu Ka Chun v. Hong Kong Airport Services Ltd & Ors (HCPI 416/2009, 11 November 2011) that, where a joint approach is taken, the parties lose their right of private access to their respective nominated experts, at least until such time as the court grants leave for the nominated experts to give oral evidence at trial, but not in cases where each nominated expert prepares his separate report. In the latter event, the parties are permitted to communicate privately with their respective experts at any time, and even if the court directs that a without prejudice meeting be held by the experts in the absence of legal representatives. Whilst there may be exceptional cases where a joint approach may be warranted, it is generally clearly right that the parties, and their legal representatives, should enjoy continuous private access to their respective nominated experts on liability.”

In Yeung Lai Ping v Secretary for Justice [2014] 5 HKLRD 525, 15 September 2014, I referred to my earlier decision in Tang Tak Ping v. Kai Shing Construction Co. and continued as follows:

“6. That, of course, does not mean that parties enjoy carte blanche approval to obtain reports from liability experts and to call them to give evidence because the matter is still subject to leave of court. As I had said in §10 of my earlier decision in Fung Chun Man v Hospital Authority, HCPI 1113/2006, 24 June 2011, whilst the civil justice reforms are to be followed and applied, having regard to the substantive rights of the parties, the parties do not have a substantive legal right to call expert opinion evidence in support of their case. They have a right to apply to court for leave to adduce expert evidence but, ultimately, the decision rests with the court whether or not to grant such leave.

7.     The court has to decide for itself whether any real assistance will be derived from such experts and it has to make that decision in the context of the requirements of CJR.  There are cases, and there will be cases, where the requirements can be said to be satisfied for the admissibility of expert evidence but where other factors lead the court to deny leave to adduce evidence from experts.”

32.For the reasons set out above,  I am satisfied that this is a proper case to grant leave to the parties to adduce expert evidence from engineers experienced in the investigation of fires and explosions on the cause or causes of the accident in the present case.  I allow the appeal and give the directions that I have set out below to enable the parties to do so.

33.I now address some of the other matters raised by the parties in their submissions to me. It was submitted on behalf of the 1st defendant that Dr Lim’s opinion that the heat source could have been provided by the plaintiff pressing the pilot light ignition switch or using an ignition gun was contradicted by the evidence of the plaintiff, in his supplemental witness statement, that he had not done so.  It is not the function of the expert to predict the findings that the trial judge will make after he has considered all the evidence adduced before him at trial.  The expert offers his opinion based on different possible factual scenarios.  If the court does not accept that a particular scenario existed, it must follow that it will not accept the expert’s opinion that was based on that particular scenario.  However, such a conclusion does not mean that the expert’s opinion is somehow tainted such that his evidence is inadmissible.  An expert must not usurp the fact finding function of the judge.  In order to discharge that duty properly, he must offer his opinion based on different possible scenarios.  Clearly, some of those scenarios are more likely to have existed than other possible, but more remote, scenarios. Depending on the case in question, remote scenarios may also need to be considered by the expert.

34.Mr C K Wong rightly criticised the plaintiff’s solicitors for failing to comply with §71 of the Personal Injury Practice Direction PD 18.1 which applies to all expert evidence, be it expert evidence on quantum or expert evidence on liability.  §71 states that:

“As soon as it is realised there exists a need or an anticipated need for adducing expert evidence at trial, or if parties fail to reach agreement on arranging joint examination and/or compiling joint expert report by the parties’ respective experts before or after the commencement of proceedings or if no agreement can be reached as to directions on obtaining expert evidence, and/or for permission to adduce expert evidence, a party shall apply (by inter partes summons or by restoring the case for Check List Review Hearing) or the parties shall jointly apply (by Consent Summons to expedite or restore the hearing of the Check List Review) to the PI master as soon as possible upon the commencement of or in the course of proceedings as the case may be for directions on obtaining expert evidence and/or for permission to adduce expert evidence.” [my emphasis]

Dr Lim’s report of 27 May 2013 had been obtained before the statement of claim was served. However, it was only disclosed by the plaintiff on 21 March 2014 in his 2^nd list of documents.  An expert report is privileged from disclosure but a party who is minded to adduce it in evidence must disclose it and apply for leave to do so as soon as possible after it has been received.  Adverse consequences may follow from a late application, particularly if the delay has prevented the other party’s expert from reviewing original evidence.  Although there has been a significant delay in the present case on the part of the plaintiff to apply for leave to adduce expert evidence on liability, I am not persuaded that I should refuse to grant leave for that reason.  The defendants’ expert will have access to all the documentary evidence was that made available to Dr Lim and he ought not to be adversely affected by being engaged on the case much later than Dr Lim. 

35.Another point taken was that the plaintiff’s application was wrongly made in that it merely sought leave to adduce the expert report of Dr Lim dated 27 May 2013, without further provision for an updated report or for leave to be granted to the defendants to adduce expert evidence.  There is nothing in this point.  The plaintiff’s solicitors had made clear to the defendants’ solicitors by their letter dated 1 September 2014 that they had no objection to the defendants’ adducing expert evidence on liability.  If the plaintiff had succeeded below, the usual directions would have been made for the defendants to obtain their expert’s report, and for the experts to hold a without prejudice meeting and produce a joint statement.

36.I grant leave to the plaintiff to adduce the expert evidence of Dr Lim at trial as contained in his report dated 27 May 2013 and in a second report to be obtained from him, within 28 days, to deal with the further documents and witness statements that have been obtained and served after 27 May 2013.

37.I grant leave to the defendants to jointly instruct and adduce expert evidence from an expert to be nominated by them and to serve his expert report within 56 days after service on the defendants of the second report of Dr Lim.

38.I direct the parties’ respective experts to hold a without prejudice meeting in the absence of the parties’ legal representatives within 28 days thereafter; and to produce a joint statement, within 14 days thereafter, on the matters on which they are agreed and on the matters on which they disagree, and setting out their reasons for their disagreement.

39.I direct that the next Check List Review hearing take place before me in chambers on 22 July 2016 at 11 am (½ hour reserved).  I also grant liberty to apply.

40.I have thought long and hard on whether or not I should direct a change of the current practice and require parties from now on to adopt a joint approach with expert evidence on liability.  However, I have come to the view that the implications of losing direct access to one’s liability expert require greater consideration and consultation.  On the other hand, I have little difficult in reviewing my decision in Tang Tak Ping v Kai Shing Construction Co.  I had concluded there that, whilst there might be exceptional cases where a joint approach might be warranted, it was generally clearly right that the parties, and their legal representatives, should enjoy continuous private access to their respective nominated experts on liability.  I have now come to the view that a case need not be exceptional for a joint approach to be adopted.  Likewise, a case need not exceptional for a party to apply for leave of court before engaging his expert on liability.  The great benefit of an early application to court for leave to engage and adduce evidence from an expert on liability is that it avoids the risk of costs being wasted, which would occur if the court refuses to grant leave to adduce the expert evidence on liability that the party has obtained without leave of court. The involvement of the court at an early stage may also assist the parties to engage experts of the right discipline and to identify the issues on which they are to be instructed to render their opinion.  A substantial amount of costs may thus be saved by involving the court at an early stage.  In granting leave for the nominated experts to deal with specific issues on liability, the court may permit each party to instruct their own expert thus preserving their right to enjoy continuous private access with their expert.  However, there may be cases where the court considers that there are good reasons for a joint approach to be adopted with experts on liability.  In such cases, the court may make directions that are similar to the directions given in respect of quantum experts, with which practitioners are now very familiar.  Of course, a joint approach is mandatory when a single joint expert on liability is to be engaged.

41.I accede to the application of Mr C K Wong to be heard on the question of costs after I have handed down my decision. Accordingly, at this stage, I will only make a costs order nisi that the defendants’ pay the costs of the plaintiff in any event, with certificate for counsel, both here and below.  I also direct that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

Ms Phillis Loh, instructed by Cheung & Liu, assigned by Director of Legal Aid, for the plaintiff

Mr Victor Gidwani, instructed by Munros, for the 1^st defendant

Mr Wong Chi Kwong, instructed by Chan & Chan, for the 2^nd defendant