Wong Sin Man Amy and Sian Hines, Co Administratrices of the Estate of Gavin Tara Spier, Deceased v. Cheng Chi Lai and Another

HCPI 532/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 532 OF 2015

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REASONS FOR DECISION
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1.This was an appeal from the decision of Master Roy Yu who refused to grant leave to the plaintiff to adduce into evidence the expert employment consultant report of Mr David McNaught dated 15 January 2015. The learned Master also refused to grant the plaintiff’s application to defer the issue of adducing evidence from an employment consultant to a later date.

2.At the start of the hearing before me, I expressed certain observations about the case and a possible way of disposing of the appeal.  Thereupon, the parties adjourned for further discussions before returning to inform me that they[1] were agreeable to the disposition of the appeal in the manner I had outlined.

3.I then made the following orders.

4.I allowed the appeal from the Master’s refusal of leave to the plaintiff to adduce into evidence the expert employment consultant report of Mr David McNaught dated 15 January 2015 to the limited extent of substituting that order for an order that the application for leave to adduce the expert employment report of Mr David McNaught be deferred for consideration at the next checklist review.

5.I did not disturb the order of costs made by the Master below, that the costs be costs in the cause, but I ordered that the costs of the appeal before me be paid by the 2^nd defendant to the plaintiffs, which I summarily assessed in the sum of $40,000.

6.I then make the further order that I would treat the hearing before me as a checklist review of these proceedings.

7.Consequent upon hearing further from the parties I make the following directions:

(1) The further case management of the proceedings be conducted by the PI Judge;

(2) Leave to the plaintiff to adduce into evidence the expert employment consultant report of Mr David McNaught dated 15 January 2015;

(3) Leave to the 2^nd defendant to adduce into evidence the expert consultant report of its nominated expert, such report to be served within two months;

(4) The employment consultants to hold a without prejudice meeting or meetings in the absence of legal representatives, and to produce on or before 20 September 2016 a joint statement setting out the issues on which they were in agreement, the issues on which they disagreed, and their respective reasons for such disagreement;

(5) Leave to the plaintiff to file and serve a Revised Statement of Damages on or before 18 October 2016;

(6) Leave to the 1^st and 2^nd defendants to file an Answer thereto on or before 15 November 2016;

(7) Checklist review adjourned to 10 am on 7 December 2016 before the PI Judge (1 hour reserved) for leave to set down and for further directions;

(8) Assessment of Damages provisionally fixed to be heard by the PI Judge on 11 to 15 September 2017, five days reserved;

(9) Liberty to apply;

(10) Costs of today’s checklist review in the cause with certificate for counsel.

8.I did not give specific directions for mediation as the parties were well versed on those procedures.

9.It was clear to me, after listening to the recording of the hearing before the learned Master, that he had been focused on the application for summary judgment that was being made against the 1^st defendant, the driver of the vehicle involved in the collision which resulted in the death of Mr Gavin Spier, who was a high income earning software engineer.  It was at the very tail-end of the substantive hearing on the summary judgment application that some proposed directions were presented to the learned Master. Of course, most of these were non-controversial and quite straightforward.  However, included amongst them was the application to adduce into evidence the report of an employment consultant, which was not a run-of-the-mill application.  It was clear to me that the learned Master had not read the employment consultant’s report and that he was not made aware of the issues that were raised in the statement of damages.  I could not treat this case as a substantial appeal on the refusal to grant leave when the learned Master had not exercised, nor been asked to exercise, his mind on the issues that needed to be looked at.

10.It behoves a party making a contested application for leave to adduce an expert’s report into evidence to properly prepare and present detailed submissions on the need for such expert opinion and to identify the pleaded issues on which his or her expertise is required.  An oral application, not backed with chapter and verse, is likely to be rejected out of hand as occurred on this occasion.

11.However, the plaintiff’s solicitor’s saving grace was that he saw where the wind was blowing and he made a last ditch application for the issue to be deferred for consideration on another occasion.  The learned Master’s refusal to accede to this application was a case management decision which I would not lightly interfere with and would only do so for good reason.  There is good reason in this case for me to allow the appeal from his decision to the limited extent of ordering that the application for leave to adduce the expert employment report of Mr David McNaught be deferred for consideration at the next checklist review. This was a substantial claim[2] that depended on cogent evidence of the deceased’s career progression and future earnings.  He was a specialised computer software engineer aged 45 at the time of death in June 2013.  His earnings, including bonus, for 2013 were likely to exceed $2.8 million.  Statistical evidence of the earnings of computer software engineers is not readily available.  On the pleaded case, the plaintiff’s application to adduce expert evidence from an employment consultant merited detailed consideration.

12.After I allowed the appeal to this limited extent, I treated the hearing before me as a checklist review of the proceedings and made the following further observations.

13.Employment consultants were not experts in a true sense.  They were specialists in their particular field with specific knowledge of specific labour market conditions, which were matters of fact.  They could select employees from their databases as comparables. It was much more economical and convenient for an employment consultant to collate all the information out there, and which they stored in their own databases, about what specific jobs within the specific type of industry were available, what was the career progression for that type of job, and to provide all that information in a convenient form to the court and in an economical way, rather than for solicitors to go hunting around for 20 different employers in 20different companies asking them to come and tell the court what vacancies they had and what wages they were offering, and so on and so forth.

14.It is for the court to decide whether or not the person in question is likely to have been promoted. It is for the court to decide as a fact whether or not he would have continued in his particular career path or taken some other one.  But once the court makes those decisions, then the employment consultant has all the factual evidence of what sort of pay a particular type of job will attract, what sort of career progression would be available at what increased pay, and so on.  Once the judge makes these decisions, the employment consultant will have the appropriate set of figures for the judge to use to assess damages.

15.In a fatal accident case, the deceased cannot tell the court about his future intentions and what jobs are out there that he would be attracted to.  A former employer who sympathises with the widow cannot be blamed for singing praises for the deceased.  In such cases, an employment consultant would be more objective than former employers.

16.Of course employment consultants must not try to predict the future.  They can speak of historical trends in terms of percentage increases in the past and leave it to the court to decide whether that trend was likely to continue or not.  Otherwise they would infringe the injunction laid down by Litton VP, as he then was, in Chan Pui Ki v. Leung On & Anor.[3]

17.The 1^st and 2^nd defendants then withdrew their resistance to the plaintiff’s application and I made the orders set out above.

Mr Robin McLeish and Mr Sidney Kwong, instructed by Hart Giles, for the plaintiff

The 1^st defendant appeared in person

Mr Victor Gidwani, instructed by Deacons, for the 2^nd defendant