Wong Hin Pui v. Mok Ying Kit and Another
Read the full judgment text of on BabelCite. was delivered on 21 December 1999.
1. On the 18th January 1995 the Plaintiff, then a 32 year old decorator, was riding his bicycle home to Tai Po, along the Tai Wo to Tai Po Road, with an 8 kg bag of rice in the front basket, when he was struck by a van and knocked off his bicycle. The van did not stop at the scene but continued at speed, pursued by the driver of another vehicle who had witnessed what had happened and noted the number and a reasonably good picture of the vehicle concerned. Unfortunately after this lapse of time i
Cited by 12 cases
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HCPI000763A/1997 HCPI No. 763/97 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 763 OF 1997 ____________
____________ Coram: Hon Seagroatt J in Court Dates of Hearing: 15-19; 23-24; 25-26 & 29 November 1999 Date of Handing Down of Judgment: 21 December 1999 ______________ J U D G M E N T ______________ 1. On the 18th January 1995 the Plaintiff, then a 32 year old decorator, was riding his bicycle home to Tai Po, along the Tai Wo to Tai Po Road, with an 8 kg bag of rice in the front basket, when he was struck by a van and knocked off his bicycle. The van did not stop at the scene but continued at speed, pursued by the driver of another vehicle who had witnessed what had happened and noted the number and a reasonably good picture of the vehicle concerned. Unfortunately after this lapse of time it has not been possible to trace this independent witness so as to have the benefit of his evidence. Nonetheless after pursuing the offending vehicle for some distance he lost contact with it and then returned to the scene, assisted the police and gave a written statement to them. Wherever he now is, he is to be praised for his sense of public spirit, and there is gratitude for the assistance he has given in resolving the main issue of liability in this case. Experience of road traffic accidents in Hong Kong has shown, regrettably, how rare that public spiritedness is. Too many people drive on, unconcerned, preoccupied with their own particular timetable and needs. It remains a pity that, whatever the reason, he has been unable to give evidence in this trial. 2. How did this collision take place and what led up to it? 3. The Plaintiff's journey home was usually by train to Tai Wo K.C.R. station where he left his bicycle, by which means he completed his journey. On this occasion he left work a little earlier in order to get some tools for his employer and on his way he collected some rice for the family who lived in their attic home in Tai Hing. He intended eventually to return to work. 4. The store from which he purchased the rice was in a road off the main dual carriage-way on which the accident occurred. Having bought the rice he rode to the junction with the main road. It was controlled by traffic lights. It was dusk to dark. 5. He stopped at the junction. When the lights changed he turned left on to the main road. He was aware of stationary traffic on his right, which would, when the lights changed, proceed along the main road in the same direction as that in which he was now travelling. 6. He decided to move to the offside lane of this two-lane carriageway as four or five hundred yards further on was the right turn which he needed to take to return home. Because of the time lapse between the change of lights permitting him to turn left, and the change of lights for the main road traffic in turn to proceed, he thought he would have sufficient time to move to the offside without being at risk from that traffic. He started the move. The next thing he recalls was that he was struck by a vehicle which he obviously had not seen or heard in advance. THE EVIDENCE OF MR SHUM CHI-YUNG 7. This consists of his statement in Chinese to the Police to which I have referred earlier. It is accompanied by a sketch plan which bears some description by him and his signature. 8. The Chinese statement has been translated and certified. We have also had the benefit of the translation by Miss Tang Siu-fan (she has been the interpreter in this case) of part of that original statement. She was not asked to check the certified translation of her colleague not simply because that would be professionally embarrassing for her but because the court acknowledged that it would be inappropriate. Sometimes a translation into English can be fairly free but the real reason for her being asked to do this was that there were differences between certain Chinese characters which the translation may not have reflected. This exercise was particularly advantageous because as interpreter in this case, Miss Tang has demonstrated enormous care in providing an unambiguous translation in high quality English. She knows the issues and has been able to concentrate on them, an advantage a translator who is not involved in the "live" case does not have. As a consequence we have had some clarification of the evidence. 9. Mr Shum who was driving a goods van on the inside lane of the dual carriageway, stopped at the traffic light controlled junction before the junction from which the Plaintiff emerged. Alongside him when he was stationary was the vehicle which eventually collided with the Plaintiff. When the lights changed and they moved off to the next junction the other vehicle was about 12 metres ahead. It appears that they did not have to stop at the next junction but went on with the light showing green in their favour. By that time the Plaintiff must have emerged on his bicycle. Certainly Mr Shum saw him, so the driver of the other van must have seen him too (or ought to have seen him) because he was ahead of Mr Shum's vehicle. 10. If Mr Shum was able to see the Plaintiff on his bicycle travelling in the middle of the nearside lane the other van driver ought to have seen him there as well. Although the Plaintiff was not showing any lights on his bicycle other than reflectors on the rear mudguard and pedals, that fact occasioned no difficulty for Mr Shum. Therefore it cannot have occasioned any difficulty for the other driver if he was keeping a proper lookout. The street lighting was in any event adequate. 11. Mr Shum had to slow down because the position of the Plaintiff in the middle of the lane prevented him from continuing at his original speed. It is clear, inferentially, that this was not a sudden slowing down putting Mr Shum in any difficulty. He makes no complaint of such. Again I have to draw an inference from this state of affairs in the absence of any oral evidence from Mr Shum. He was waiting for the Plaintiff to clear the lane sufficiently for him to proceed either by riding to the nearside or to the offside. Mr Shum did not think it necessary to sound his horn. It is a reasonable inference that he thought the Plaintiff might well move to his offside, into the offside lane. 12. At this stage, knowing now where the Plaintiff intended to turn eventually, I do not find it at all unreasonable that he should opt for the offside lane at an early stage in order to avoid any complications with the traffic at or nearer the junction (also traffic light controlled) at which he intended to turn right. 13. This then was the situation when Mr Shum stated that the Plaintiff suddenly moved to the fast lane. The van - "FS 488" as I shall describe it from now on - was about 3 metres behind the bicycle. It struck the Plaintiff on the right side of his body. "The man fell to the left on to the dividing lines in the middle of the road". The sketch plan gives a diagram of the manoeuvre. 14. When it was apparent that "FS 488" was not going to stop, Mr Shum set off in pursuit. "FS 488" travelled at speed cutting into the fast, middle and slow lanes at will. Eventually because of the speed at which "FS 488" was being driven, Mr Shum lost sight of it and he returned to the scene. THE POLICE EVIDENCE 15. This was not a well-investigated road accident. A sketch plan was prepared, some photographs were taken and when the first Defendant was arrested four months later a number of statements were taken from him. There was some forensic examination of the vehicle of which the first Defendant was found to be in possession and control, and photographs of it were taken. However this later material has either been lost by the police or they have failed to provide it. 16. Initially I shall concern myself with what was found at the scene. The sketch plan (Exhibit P. 1) records the position of the bicycle, two reflective mirrors, the Plaintiff's shoes, and some broken glass. There is no evidence to show whether or not any of these items had been moved by any person. The fixed point of importance is the lamp-post AN6282(4) which is shown in photograph 238 (bottom) of Exhibit P. 2. It is very close to the junction - photograph 238 (top) of P. 2 makes this clear. The sketch plan is not well-proportioned. 17. The position of the bicycle, found on the nearside verge (photo 156(a) - (top) and 156(f) - (bottom), with its rear wheel and pedals on the roadway is important. The rear wheel was about 18.2 metres from the lamp post and the front wheel about 17.6 metres distant. Those are of course diagonal measurements. This puts the bicycle approximately 25 metres - possibly less - into the main road from the junction, or about five car lengths. This itself is important as it indicates that only a few seconds can have elapsed between the Plaintiff emerging from the side road, and the occurrence of the collision. 18. A mirror of the type fixed to the outside of a vehicle was found in the gutter (photograph 156(c) top) four metres nearer the junction than the bicycle. No measurement was recorded. Another rear view mirror, somewhat spherical, was found on the nearside lane nearer to the broken white line dividing the lanes than to the gutter. Again no measurement was taken. Both mirrors were identical to those fitted to a vehicle similar to "FS 488". Between the bicycle and the first mirror in the gutter region was scattered broken glass. The Plaintiff's shoes were on the nearside lane, separated, and between the second mirror and the bicycle. Again no measurements were recorded on the plan but the officer says they were 2 metres and 1 metre respectively further on from the bicycle. On the nearside lane, as shown by photograph 156(c) (bottom) were two parallel scratch marks. For some reason which the officer said he forgot, they were not shown on the sketch plan. I have drawn them in roughly on my copy of Exh. P. 1. They too were not measured but the officer was able to say that the distance between those marks and the bicycle was approximately 5 metres. 19. It is difficult to be certain what caused them but it could well be the pedal and some projecting nut. The bicycle was also examined and photographed in May but again no report or photographs have been supplied by the police. 20. The Investigation log supplements the sketch plan to some extent. Shards of glass were found in the slow lane. These can be seen in photograph 156(c) (middle). The front part of the bicycle was slightly dented. The scene was well-illuminated with good visibility. 21. The final entry for the day of the accident of any significance is the record of a short exchange between the Police Officer and the Plaintiff at the Jockey Club Clinic. The Plaintiff said that he did not know how he was hit. He said he did not cut to the fast lane from the slow lane. THE EVIDENCE FROM THE PLAINTIFF 22. The Plaintiff gave a written statement to the police officer on 14 March 1995. In it the Plaintiff appears to confirm that he "cut into the fast lane from the slow lane without checking clearly the traffic condition at his back" and he appeared to concede that he was negligent/careless at the time he did so in not checking the traffic condition behind. The Plaintiff's belief is that this was already prepared for him to sign. I believe that there is some substance in what he says was the situation when he signed the statement. In my view the police relied on what Mr Shum had told them in his statement but appeared to change the emphasis of his description by substituting the term "cutting into" for "suddenly moved". There are other parts of that statement which have the hall mark of a narrative prepared by a police officer. The questions and answers section is however likely to be the record of the exchange between the police officer and the Plaintiff. CONCLUSION 23. I am satisfied that the Plaintiff had only just emerged from the side road into the main road and that there was some justification for his thinking that he had sufficient time to move to the offside lane before any traffic was upon him. There is no evidence as to the duration of the red light phase holding back the main road traffic but I am satisfied that it was not a long duration. 24. It was certainly not long enough to enable the Plaintiff to reach a point more than 25 metres along the main road beyond the junction. Neither Mr Shum nor the driver of "FS 488" had been held up at that junction by the lights and were able to take it on the run with "FS 488" travelling at a faster speed than Mr Shum's vehicle. 25. There is no evidence from the driver of "FS 488" to deal with the Plaintiff's version, the picture emerging from Mr Shum's statement and the picture built up from all the evidence. 26. There are clear inferences to be drawn. The Plaintiff was seen by Mr Shum clearly enough. The driver of "FS 488" was in advance of Mr Shum. He ought to have seen the Plaintiff clearly enough. If he had seen him he would have seen him in a position in which it was more probable than not that he would move to the offside. That is in my view why Mr Shum slowed down. He was not put in any difficulty. Visibility was not a problem. Headlights particularly those of Mr Shum would have illuminated the Plaintiff clearly enough, but in any event street lighting illuminated the scene well. Any prudent motorist should, and would have adjusted the speed of his vehicle to allow for the probable manoeuvre which I have described . Motorists are not entitled to proceed blithely as if no other road user is likely to want to take up a position which may temporarily cause them to slow down. If they wish nonetheless to overtake a cyclist with that likely course they should do so giving the slower moving, but sharper turning, road user a greater degree of clearance. It is clear from the probable position on the road of contact between the two that the driver of "FS 488" gave wholly insufficient clearance. No horn was sounded to alert the cyclist to his approach. That was a prime requirement of a motorist in this situation. The collision took place on the division between the two lanes - i.e. in the middle of the road. It may even have been whilst most of the bicycle was still in the inner lane. There was no braking or slowing manoeuvre by "FS 488". Had there been, I feel sure Mr Shum would have stated it. The driver of "FS 488" was driving too fast - he was crossing a junction, albeit with the lights in his favour, he ought to have seen the cyclist, he made no adjustment in his position on the road. He must have been aware of the collision - his two wing mirrors were detached by the force of it. Even that awareness did not cause him to brake. He simply drove straight on. 27. I do not consider that the fact that the Plaintiff's bicycle was showing only reflector lights on the pedals and rear mudguard has any relevance to the question of liability in this case. The Plaintiff's fault lay in his starting that manoeuvre without checking behind him. Although I can well understand why he did not, he nonetheless took a risk and that was negligent. A quick glance to his right would have told him that the lights had changed and traffic was bearing down on him. But the majority of the responsibility for the collision lies with the driver of "FS 488". In my view the division of responsibility is 75% on the part of the driver of "FS 488" and 25% on the Plaintiff. "FS 488" AND ITS DRIVER 28. Investigations were put in hand quickly to trace "FS 488". Very soon a light goods vehicle bearing that registration number was traced. Photographs were taken of it. No trace of relevant damage to it was found. It was properly registered with that number. Mr Shum inspected that van and was satisfied that it was not the vehicle involved which he had chased because there were no stickers on the offending vehicle. Eventually the owner of the traced vehicle, and the vehicle itself were dismissed from the investigation. 29. Approximately four months later the alert Police Officer who had attended the scene of the accident spied "FS 488" one evening when he was off-duty. He contacted colleagues on duty who attended and waited for someone to come to the vehicle. In due course the first Defendant arrived and he was arrested. The vehicle was bearing false plates "FS 488" and the vehicle excise license displayed had been stolen at some stage from the real FS 488 which had not been involved in the accident. The correct registration number of this vehicle was GB 6121. It had been stolen in August of the previous year, 1994. The first Defendant was obviously regarded as the prime suspect in relation to this theft. Nearly three weeks later, Mr Shum identified this vehicle, properly GB 6121, as the vehicle which had knocked the Plaintiff off his bicycle. The off-duty Police Officer also recalled a dent on the front nearside of the van when he inspected the area at some stage. 30. There is no doubt in my mind that the van bearing false number plates FS 488, with the vehicle excise disc from the real FS 488, and being the stolen vehicle GB 6121, was the vehicle which knocked down the Plaintiff. It is inherently unlikely that there would be a third van, identical in type also bearing false plates "FS 488". 31. But who drove that van on the night the Plaintiff met with his accident? When first interviewed the first Defendant, having been given the standard caution, went on to explain that a colleague known as "Ah Keung" (who has never been traced), whom he had known for about six months, asked him to look after the vehicle at about 2030 hrs the previous evening outside Fanling Railway Station. This was almost exactly 24 hours before his arrest. "Ah Keung" was apparently going to the mainland with an uncertain return date. 32. Shortly afterward he was asked more specifically about the stolen vehicle excise licence. He repeated that he had borrowed the vehicle from "Ah Keung". The following day (May 9th) he gave more details about "Ah Keung" and the meeting at Fanling Railway Station. 33. Two weeks later it is put to him that he stole the vehicle in August 1994. He was cautioned. He said "I say nothing". Certainly he had already given an explanation for his possession of the vehicle, on his arrest, and had answered questions concerning the theft of the excise licence. Now in relation to the theft of the vehicle he exercised his right of silence. It would have been easy for him to say - "I told you I did not have the vehicle until 7th May". A few minutes later it was put to him that he was driving the vehicle on the 18th January 1995 when the Plaintiff was knocked down. Again he said after caution "I say nothing". He could so easily have said "I did not have the vehicle until 7th May". This is a civil court. I am not concerned with the entitlement after caution, to the exercise of the right of silence. This was the first mention of the vehicle being involved in the accident to the Plaintiff. I find the coyness of the reply, given the explanation on an earlier occasion, to be odd and somewhat illogical. If he was maintaining the "Ah Keung gave me possession of it" story why not simply say - "No, I have already told you". 34. In this trial he has not been called to give evidence. No protection of the right to silence is at stake in these proceedings. There is a strong prima facie conclusion to be drawn that the stolen vehicle with false number plates, and stolen excise licence, found in the possession of the first Defendant, albeit four months later, had been driven by him on 18th January 1995. All he needed to do was to give evidence to the effect that he was not in possession of it until 2030 hours on 7th May 1995. He did not do so. Of course he would have exposed himself to cross-examination had he done so but the ambit of cross-examination was very limited. The simple answer 'no' would have kept it very short. He was not prepared to do so. The inference is irresistible. He had something to hide and feared exposure. I am satisfied he was the driver of the vehicle when it struck the Plaintiff. Any innocent man would have gone into the witness box and given evidence perhaps in the same terms as he did when next questioned about the accident on 20th August 1995. The Plaintiff's judgment will therefore be against the first Defendant. QUANTUM Pain, Suffering and loss of amenity. 35. This Plaintiff was not treated properly at the Tai Po Clinic to which he was first taken. He was discharged without proper clinical assessment. When his condition deteriorated he was admitted to the Prince of Wales Hospital. He had sustained a serious injury to his head which ought to have been apparent to those at the Tai Po clinic who had kept him waiting and then sent him home. 36. He had two operations carried out on his head including evacuation of haematomas which had built up within his skull. He was in intensive care for 7 days. He was unable to respond to any verbal contact for a further week. He developed a left-side hemiplaegia and epileptiform attacks requiring anti-convulsant treatment. That bald statement somewhat conceals the gravity of this man's condition when he finally received proper treatment. About one year after his discharge from convalescent hospital a cranioplasty was carried out. The external result of the earlier surgery was less than aesthetically satisfactory according to expert opinion and some rectification was necessary. It may be that the extreme emergency created by the earlier neglect did not allow for much cosmetic concern. He is nonetheless left with a significant cosmetic defect of which he tries to make light as much as he can, because he is such a patently decent, likeable, honest and philosophical man. Such is his physical and mental state however that it is difficult to believe that he is only 37 years of age. 37. His left sided hemiparesis affects his arms particularly severely. When the left hand grips, he needs to lever it open to release that grip. He can use it to a limited extent to steady or support an object providing that not much weight is involved. It has no capacity for fine movements. He has regular epileptiform seizures or convulsions which are focal in nature. Sometimes he gets warning of their impending arrival and is able to position himself to prepare for a degree of immobility and collapse so as to limit the risk to himself, but this is not always the case. Whether with or without warning, he remains conscious to a degree. They have however diminished substantially in frequency and form over the past two years. He has diarised them and certainly in the past few months their incidence has been markedly reduced. He is currently taking Tegretol, Phenytoin and Epilim for this condition. He has taken to supplementing or even replacing this medication to some extent by some herbal or pharmacopaeic capsules recommended to him by a friend. His experience is that they have had some beneficial effect as a consequence of which he has felt confident enough to reduce his intake of Epilim. It is of course early days yet for determining whether this is coincidental or whether they are having some genuine therapeutic effect. 38. On the basis of his physical and neurological deficits, Dr Choa considers him to be unemployable on the open market. Although Dr Falli Shroff was also called to give evidence (on behalf of the Defendants) there was no material difference in the evidence of the consultant neurologists. 39. There is also a significant cognitive deficit as attested to by Professor Peter Lee and I do not need to detail this. 40. Two psychiatrists also gave evidence, Dr Chung See-yuen for the Plaintiff and Dr K Singer for the Defendant. I failed to detect anything of significance in the marginal difference between the two of them. 41. Dr Chung diagnosed the Plaintiff as suffering from post-concussional disorder (or syndrome) and Dysthymic disorders in April 1998. He expected his condition to be permanent with a need for long term psychiatric support. He was of course already on Prozac in conjunction with his medication for the epileptiform convulsions. In November this year Dr Chung was still adhering to a five year programme with no maintenance thereafter though he might need some additional treatment if future stresses break down his progress. 42. Dr Singer saw the Plaintiff in May 1999. He diagnosed a depressive disorder and post-concussional syndrome. These are only different labels and there is only a matter of degree between them on the extent of these disorders. The variation is a reasonable one to which the state of the patient on a given day is often the most significant contributory factor. He thought these should be treatment over six months - psychiatric and psychotherapeutic, with medication. In his evidence he extended the necessary period to about eighteen months. There are bound to be variables. 43. One of the causes of his depressed state is likely to be the disappearance of his wife with his son, his rejection by his father and most of his family, and the loss of his home as well as employment. He lives in a hostel for people with a wide range of disabilities, and it is a most unsatisfactory state of affairs. These are all a direct consequence of the injuries he has suffered. 44. His sense of loss and alienation must be considerable. There is very little ground for him to regain. There is some prospect he may have his young son return to him. He has organised his life impeccably albeit with a simple repetitive regime which provides little entertainment, merely a very limited degree of self-sufficiency. I was impressed by the care he took to create some sense of value in his existence. In a harsh economic and social environment such as Hong Kong's, he needs the kind of cocoon that he has woven around himself to survive even though sometimes he has a somewhat rose-tinted view of his prospects. General damages under this head will be $1,000,000. Loss of earnings - Pre-Trial 45. This has been agreed in the sum of $1,117,175. Future loss of earnings 46. The monthly loss is agreed at $21,294. Although the Defendant argued on the basis of an eleven month year to allow for holidays, I nonetheless think that the 26 day working month allows sufficiently for that factor. He was a hard-working man. I think the 12 month year approach is correct. The loss is therefore $255,528 to which I apply a multiplier of 16 given his age and the fact that it is unrealistic to assume that he can ever work again. The loss under this head is therefore $4,088,448. Mandatory Provident Fund 47. The loss here is 5% of his future loss. The figure is therefore $204,422.40. Other pre-trial expenditure and loss
Future expenditure - Medical/Ancillary
Future Care and Attention
Aids and Equipment
The light weight rest seat, which is also a walking support, is also necessary. This will be allowed at $2,115. The bath-board and seat is essential for safety and effective hygiene. I allow it at $11,889. 48. The hand splints are justified but not to the extent contended for. I think the Defendant's approach is more realistic. I will allow $8,100. The foot splint is argued for on a contingency basis. The extent of it is not reasonable. I will allow for two totalling$3,000. 49. Under this section the total will be : $28,512 50. A "sturdy trolley" - the accuracy of the description of which I doubt, and the topper urinal are not allowed. This Plaintiff is not in a geriatric state and any such long-term future need is highly speculative. Alternative accommodation 51. Unquestionably he needs this. He has applied for Public Housing. He may receive this. His past uncertain married status has prevented a proper consideration of his application. There is an unknown and therefore speculative element here. The extent of the housing is itself dependent upon a number of unknown factors. I prefer to approach this aspect on the basis that his incapacity will require more extensive accommodation than hitherto. Whether that has to take account of a young son is one of those unknown factors. The Defendants have approached this aspect on the basis of a small 2-bedroom unit in Jade Plaza Tai Po. He may need something bigger but he may not need it yet. He may want something less sophisticated. Again the approach is necessarily arbitrary. In my view the Plaintiff's approach is not a fair reflection of all these unknown factors. It is not capable of a strict mathematical calculation. 52. I favour the more reserved approach of the Defendants but will round their suggested figure up to $1,000,000 as being more likely to reflect economic reality. Miscellaneous losses and expenses
Conclusion 53. The total of the heads of damage are as follows:
54. Of that sum the Plaintiff is entitled to recover $7,258,444.50 (25% having been deducted) with interest thereon at the appropriate rates for the appropriate periods. I expect the solicitors for the parties to agree the figure for interest. The Plaintiff is also entitled to his costs. There will be judgment for the Plaintiff accordingly. 55. In respect of my earlier interlocutory judgment concerning the Plaintiff's application to join the M.I.B. as a Defendant the order for costs must be for the M.I.B. against the Plaintiff. This was not a viable application and I hope the costs will not be borne by the Plaintiff himself out of his damages. EXPERT EVIDENCE, THE NEED AND THE COSTS INVOLVED. 56. I regret that I have to return to this aspect in this case. I was required to listen to the oral evidence of two consultant neurologists, who did not disagree on any essential matter, and two consultant psychiatrists who disagreed only as to the extent of the Plaintiff's future need for psychiatric/psychotherapeutic support. Having listened to the impressive evidence of the Plaintiff's consultant psychologist, whose evidence for some reason the Plaintiff's advisers did not seem to want to accept, it was quite unnecessary to call the two psychiatrists to repeat what they had stated in writing, with inconsequential variation. I would have expected the parties to have agreed the ambit of their differences to be resolved in the light of the Plaintiff's evidence, and that of Professor Peter Lee. Furthermore both parties called an occupational therapist, Mrs Alice Tsang and Mr David Man. I cannot stress too strongly that this Court is aware of the excessive, expensive and wholly unjustified use of occupational therapists in personal injury cases. In the vast majority of cases their reports state no more than is apparent to any judge with any understanding of the effect of serious injuries on any human being. Essential matters are within the cognisance of orthopaedic and neurological consultants. Any practical problems can adequately be dealt with by rehabilitation consultants and nursing advisers. In the case of this Plaintiff his claim was significantly overstated in a number of respects. The Defendant's expert had not acquainted himself with a number of vital areas for consideration but even then his evidence would have been no more relevant. 57. It is incumbent upon all counsel, both senior and junior, to exercise detached and practical judgment when it comes to deciding what areas of damage, care and provision actually need expert evidence and to be satisfied that what they seek is actually expert evidence. An indiscriminate obtaining of reports, provides for any judge, an enormous amount of reading before he is able to decide to what extent the contents of reports are relevant and essential. He or she ought to be able to rely on counsel exercising a degree of judgment which reduces the material to that which is necessary, and counsel should impute to the judge, whoever he or she may be, a degree of understanding of life, of disability and of what it is necessary to compensate in principle. 58. In this case I read reports from neurologists, psychiatrists and occupational therapists totalling 170 pages, quite apart from the essential reports, one of which I ordered as a joint report. Some of these reports were in any event premature. This aspect of the case is a classic example of what this court sees as an unrestrained use of resources with little regard for the cost involved. As a consequence a significant amount of time and effort has been wasted. The trial lasted at least two days more than was necessary. If the Plaintiff is required to meet any of the costs to which I have referred, out of his damages, then that would be wholly unwarranted. In my view they fall to be paid out of the costs of the legal advisers who failed to exercise that judgment, where they are not met by the unsuccessful party. The time is now ripe for the court to exercise a controlling hand far earlier than I thought was necessary if practitioners are not prepared to look hard and fast at the case of the person they represent and ask themselves - "What do we really need in the way of expert evidence, and what can we ask the Defendants to agree at an early stage?"
Representation: Mr Michael Ozorio, SC with Mr Mohan Bharwaney instructed by the Director of Legal Aid, for the Plaintiff Mr Neville Sarony, SC instructed by Messrs T S Tong & Co., for the Defendant |