Chung Yuen Yee v. Sam Woo Bore Pile Foundation Ltd and Others
Read the full judgment text of HCPI 1053/2006 on BabelCite. This High Court CFI judgment was delivered on 17 October 2008.
1. Before the court is the 1 st , 3 rd and 4 th Defendants’ appeal from Master B. Kwan’s decision dated 15 April 2008 dismissing their application for leave to adduce expert evidence as set out in:
Cited by 1 case · Cites 9 cases
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HCPI 1053/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1053 OF 2006 ----------------------
---------------------- Before: Deputy High Court Judge Lisa Wong, SC in Chambers Date of Hearing: 30 May 2008 Date of Judgment: 17 October 2008 ---------------------- J U D G M E N T ---------------------- 1.Before the court is the 1st, 3rd and 4th Defendants’ appeal from Master B. Kwan’s decision dated 15 April 2008 dismissing their application for leave to adduce expert evidence as set out in:
I. FATAL ACCIDENT GIVING RISE TO THE CLAIM HEREIN (“THE ACCIDENT”) 2.On 27 July 2004, at about 4 pm, Mr Lai Wing Kee, deceased (“the Deceased”), an employee of the 2nd Defendant, was engaged in the lifting of a forklift truck (“the Truck”) by a lorry-mounted crane (“the Crane”) from the pavement near the entrance to the 4th Defendant’s premises at Yau Tong Marine Lot No.35, Cha Kwo Ling Road, Kowloon onto the platform of the lorry (“the Lorry”) which was parked on the roadside in preparation for the transportation of the Truck to another location in Tsing Yi for repair and maintenance. While being lifted over the left side-board of the Lorry, the Truck fell and crushed the Deceased (who was standing underneath it) to death. II. PRESENT STATE OF EVIDENCE ON HOW AND WHY THE ACCIDENT OCCURRED Eye witness 3.None of the witness statements exchanged between the parties in compliance with the direction given by Master B. Kwan at the Checklist Review on 25 April 2007 provide first-hand evidence on what caused the Truck to fall. 4.Investigation by the Labour Department and the police after the Accident yielded only one eye witness account, i.e. that by Mr Lam Siu Mo (“Mr Lam”) who was employed by the 3rd Defendant and operating the Crane at the time of the Accident. 5.Although Mr Lam also recalled the presence of a Mr Wan Pui Yuen (“Mr Wan”), a maintenance technician in the employ of the 4th Defendant, Mr Wan claimed not to have seen how the Accident occurred or noticed how the Deceased secured the Truck for lifting by the Crane when he was interviewed by the Labour Department and the police and when he gave evidence at Death Inquest No.1267/2004 held on 4 and 5 July 2005 (“the Death Inquest”). 6.Neither the Plaintiff nor the Defendants have filed any witness statement by Mr Lam. I shall proceed on the basis that Mr Lam will not testify at the trial of this action. 7.Mr Lam had, however, made to the Labour Department and the police a number of declarations and statements. In particular, Mr Lam said in his declarations dated 6 and 7 August and 29 October 2004 that:
8.It is however significant to note that Mr Lam subsequently conceded under cross-examination by counsel for the 2nd to 4th Defendants at the Death Inquest that he did not actually see but he guessed that it was Chain A which snapped first, causing the suspended Truck to lose support and fall which in turn caused Chain B to jerk and become detached from the hook of the Crane. 9.Both Mr Lam’s declarations and statements to the Labour Department and the police and the transcript of Mr Lam’s testimony at the Death Inquest (as opposed to the Coroner’s findings and verdict) would be admissible as hearsay evidence at the trial of this action: Yu Nongxian v Ng Ka Wing [2007] 4 HKLRD 159 (CA). 10.In both his written and oral submissions, Mr Andy Hung, Counsel for the Plaintiff, argues this appeal on the basis that an eye witness account of the Accident (in the form of Mr Lam’s declarations and statements to the Labour Department and the police) would be available; that Mr Lam saw Chain A snap first. However, in light of Mr Lam’s concession in the Coroner’s Court that he did not actually see but merely guessed that it was Chain A which snapped first, I am inclined to agree with Ms Queenie Ng, Counsel for the 1st, 3rd and 4th Defendants, that the trial judge would not be assisted by an eye witness account on at least one material aspect of the Accident, that is, the immediate cause of the Accident. Other factual witness 11.Apart from rigging Chain A to the overhead guard of the Truck to slightly lift up the Truck to rescue the Deceased, the scene of the Accident had been left as it was for the arrival of the police and officers of the Labour Department. 12.The factual findings made by officers of the Labour Department in the course of their investigation of the Accident are set out in 2 reports:
13.These findings are admissible as factual evidence even without the direction mentioned in paragraph 14 below:
[Technical Report paragraph 4.5]
Expert witnesses 14.At the Checklist Review on 25 April 2007, Master B. Kwan ordered that no expert evidence as to liability shall be adduced in written or oral form save in the forms of the Technical Report and the Accident Report and/or the oral evidence of their authors. 15.The Technical Report concludes that the immediate cause of the Accident was the failure of Chain A [paragraph 5.5]. As I understand from reading the Technical Report, Mr Chan so concludes on the basis that a witness had given information that the last link at the end of Chain A snapped, resulting in the suspended Truck losing support and falling which in turn caused Chain B to jerk to become detached from the hook of the Crane [paragraph 4.1(e)]. 16.Pausing here, first, the witness in question, Mr Lam, had since qualified that he did not see but he guessed that the suspended Truck fell because the last link at the end of Chain A snapped, resulting in the suspended Truck losing support and falling which, in turn, caused Chain B to jerk to become detached from the hook of the Crane. 17.Second, the manner in which the Accident occurred is a fact for the judge trying this action to find based on the evidence he accepts and such inferences as he draws from the primary facts he finds. It is a matter for the trial judge, and not this or any other expert witness, to say “I have read Mr Lam’s declarations to the Labour Department and I accept such evidence and conclude therefrom that the Accident happened as the witness described.”: per Stuart Smith LJinLiddell v Middleton [1996] PIQR 36 (CA) at 42. 18.Having accepted Mr Lam’s account that the Accident started with the snapping of Chain A, what Mr Chan then proceeds to do is to find out why Chain A snapped. And he identifies 2 physical causes for the failure of Chain A:
19.That Mr Chan can identify 2 physical causes that explain why Chain A could snap even when the load of the Truck was within its maximum loading capacity might show or tend to show that Mr Lam guessed correctly that the snapping of Chain A set in motion the fall of the Truck. 20.Mr Chan further concludes in paragraph 5.6 of the Technical Report that the lifting of the Truck was carried out in an unsafe manner – unsafe in both the lifting gear and the rigging method used:
21.Turning to the Accident Report, Mr Ngai concludes that the direct cause of the Accident was the failure of Chain A and adds that the lack of a safe system of work also contributed to the Accident [paragraph 5]. He recommends in paragraph 6 the following preventive measures:
22.In paragraph 25 of his written submissions, Mr Hung concedes that paragraphs 5 and 6 of the Accident Report are not admissible as expert evidence and expects them to be disregarded by the trial judge. In my view, Mr Hung concedes rightly and fairly:
The Coroner’s verdict and reasons for verdict 23.In addition to Mr Lam, Mr Wan, Mr Chan, Mr Ngai, Dr Chung and Dr Wong also gave evidence at the Death Inquest. 24.In the course of the argument before me, both parties have sought to refer to and rely on the Coroner’s verdict and reasons for verdict. For instance, Ms Ng draws my attention to parts of the Coroner’s decision where he expressed reservations about aspects of Mr Lam’s evidence. Mr Hung takes me to other parts of the Coroner’s decision where he criticized Dr Chung’s written report and live testimony. For the avoidance of doubt, I have not had regard to the Coroner’s verdict and reasons for verdict which are essentially the Coroner’s views on the effect of the evidence before him. At the trial of this action, no reliance can be placed on the Coroner’s opinion of Mr Lam (or indeed any other witnesses) as a witness before him. The reliability of Mr Lam’s assumption that the Accident was set in motion by the snapping of Chain A will be a matter for the judge trying this action, having regard to the other primary facts and circumstances existing and the inferences properly drawn therefrom. III. RELIANCE BY THE PLAINTIFF ON MR LAM’S DECLARATIONS AND THE TECHNICAL REPORT 25.The Plaintiff, the Deceased’s widow and administratrix of his estate, adopts as her case on how the Accident occurred Mr Lam’s account in the declarations to the Labour Department as set out in paragraph 7(4) above. The charges of breach of statutory duties, negligence, breach of common duty of care and breach of contract of employment with the Deceased that follow are premised upon the Accident having been set in motion by the snapping of Chain A. 26.Further, although the particulars are couched in very wide and general terms, it is apparent that the Plaintiff draws heavily on the opinion expressed by Mr Chan in the Technical Report as to why Chain A snapped namely, the overloading of Chain A caused by the hooking back of both ends of the chain and the pre-existing breakage of at least one link of Chain A. IV. The position of the 1st, 3rd and 4th Defendants 27.The 1st, 3rd and 4th Defendants deny the Plaintiff’s case on how the Accident occurred save that the Truck fell and hit the Deceased in the course of being lifted onto the Lorry. Although, as stressed by Mr Hung, these defendants have not advanced any positive case as to how the Accident otherwise occurred or might have occurred, by such denial, they do put in issue how and why the Accident occurred. V. DR CHUNG’S REPORT 28.Dr Chung seeks to advance the following opinion in his report dated 6 February 2008:
29.In his written submissions, Mr Hung makes a number of points which questions the reliability of the experiments that Dr Chung conducted (e.g. that Dr Chung used “new” chains when Chain A bore signs of wear and had slight bents in various links) and the basis of the views expressed by Dr Chung (e.g. why the loading capacity of a chain would be reduced by 40% if 2/5 of the cross sectional area of a link has been fractured; why there should be no distinction between an aged chain with a link which had been fractured for some time and a new chain with a newly inflicted fracture). I am not in a position to undertake any examination of the merits of Dr Chung’s opinion. Nor should I even try to do so. This is a matter for the trial judge if the 1st, 3rd and 4th Defendants are allowed to adduce the report. 30.Expert evidence can and should be admitted into evidence if it is necessary, relevant and of probative value: Chan Kwok Ming v Hitachi Electric Service Ltd , HCPI 322/2002, unreported, Suffiad J referred to in Arfan Muhammed v MPS Engineering Ltd, HCPI 457/2003, unreported, 30 June 2005, per Deputy High Court Judge Muttrie at §6. 31.At the pre-trial stage, the Court should refuse to admit expert evidence only if the proposed evidence is plainly irrelevant. The Court should however grant leave for expert evidence to be adduced at trial, not only where the evidence is clearly relevant, but also where it cannot at the interlocutory stage form a clear view on its relevance: Ko Chi Keung v Lee Ping Yan Andrew [2001] 2 HKC 63, per Chung J at 831C-833E; Lee Kin Yee Annabell v Lee Wing Kim, HCA 9522/1997, unreported, 6 December 2001, per Chu J at pp.7-8, §§13-15 and Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd [2002] 4 HKC 225, perChu J at 511-512, §11. 32.It has been said that it is an exception rather than the rule that expert evidence is required in personal injuries litigation (especially in cases arising out of road traffic accidents): see, for example, Liddell v Middleton (supra), per Stuart Smith LJ at 41-44; Tong Ho Wing v Wong Fuk, HCPI 1369/1999, unreported, 19 July 2000, per Suffiad J at p.9; Fong Sai Ho v Harifast Company Limited, HCPI 1199/2003, unreported, 4 March 2005, per Deputy High Court Judge Carlson at §§11-13;and Cheung Yuen Fan Sally v Hong Kong University of Science & Technology, HCPI 106 & 107/2003, unreported, 13 March 2006, per Master B. Kwan at §11. 33.It appears to me that Master B. Kwan must have considered the present case to be an exception. Otherwise, she would not have made the order mentioned in paragraph 14 above, allowing the admission of the Technical Report (and the Accident Report) as expert evidence on liability. 34.Mr Hung maintains in paragraph 31 of his written submissions the relevance and probative value of the opinion expressed by Mr Chan in the Technical Report. 35.I agree with Ms Ng that it is significant that there is already expert evidence on liability in this case. 36.In Chan Wai Ying v Sin Kit Sang, HCPI 805/2006, unreported, 10 July 2007, Deputy High Court Judge Gill said at §67:
In Chan Wai Ying v Sin Kit Sang, the expert report that was already in was a road traffic accident reconstruction report made by a chemist in the Forensic Science Division of the Government Laboratory. 37.Mr Hung is dismissive about Dr Chung’s report by reason of, inter alia, Dr Chung’s inability to say conclusively how Chain A might otherwise have broken than under the gradual pulling force exerted on it by the load of the Truck or that Chain A broke only after having been subjected to the sudden force impact caused by the detachment of Chain B from the hook of the Crane. 38.However, this does not detract from the fact that, with reasons (the validity of which has to be examined elsewhere), Dr Chung questions the assumption that the snapping of Chain A set in motion the fall of the Truck and disagrees with the 2 reasons advanced by Mr Chan to explain why Chain A could snap when the load of the Truck was within its loading capacity. 39.Given the 1st, 3rd and 4th Defendants’ stance on the occurrence of the Accident, I assume that they will want to cross-examine Mr Chan. They are entitled to do so. I do not see how they could effectively do so without putting in evidence Dr Chung’s report. Without Dr Chung’s report, there will be no evidence to rebut the Technical Report and Mr Chan’s oral evidence. 40.In the circumstances, I am unable to say that Dr Chung’s report is plainly irrelevant or of no probative value. VI. DR WONG’S REPORT 41.Moving onto Dr Wong’s report, the entire section under the heading “Automatic Safe Load Indicator” (pp.3-4) is inadmissible for irrelevance. It is presumably a response to the Plaintiff’s allegations of failure to ensure that the Crane was not used unless it was fitted with an automatic safe load indicator that had been inspected by a competent person and determined to be in safe working order and of failure to ensure that the Crane was not used unless it had clearly and legibly marked on it the safe working load at various radii of the jib. Even if the Defendants had so failed, such failure is irrelevant to liability for the Accident. The Crane had in fact not been overloaded. 42.Likewise, Dr Wong’s response to the suggestions that Chain B was too small and the pulling force on it exceeded the recommended maximum load for Chain B [paragraph 7(e)] appears to me to be irrelevant. As a matter of fact, Chain B did not break. 43.Other parts are inadmissible as they contain factual matters which Dr Wong knows of only from instructions, e.g. the provision of working procedures, training and training materials for safe lifting by the Defendants (p.2); the Deceased’s experience in rigging and lifting operations (p.3); Mr Lam’s qualification for and experience in operating the Crane (p.3); that there was no reason to suspect or doubt the Deceased or Mr Lam’s competence and that the need to provide further supervision was considered unnecessary (p.3) and the availability to the Deceased and his co-workers of suitable lifting gears like brother slings with a master ring (pp.4 and 6). 44.Certain comments amount to submissions, e.g. that chains that are designed for lashing can be used for lifting if the safe working load is not exceeded and that there is no restriction on the use of lashing chains for lifting purposes (p.5) and that there is no evidence to show that the “hooking back” arrangement of Chain A had reduced the capacity of the chain to such an extent as to cause its failure [paragraph 7(c)]. Incidentally, the second-mentioned observation may be regarded as being inconsistent with Dr Chung’s view on the effect of “hooking back”. 45.In short, the only statements of opinion expressed by Dr Wong within his area of expertise are:
46.As said earlier (paragraph 22 above), once the physical cause of the Accident (whatever it is) is found, consideration and determination of the further question as to whether such cause was brought about by lack of a safe system of work in the circumstances of the Accident is really a matter of common sense and within the knowledge and experience that one can expert of a judge without the assistance of expert evidence. To put it bluntly, the court does not need Dr Wong or any other experts to give it the 4 points mentioned in the preceding paragraph if the factual premises underlying those points are established. 47.I was initially concerned that the trial judge would have the Accident Report which covers the industrial safety aspect. This has, however, been addressed by the Plaintiff’s concession regarding the admissibility of the opinion portion of the Accident Report (paragraph 22 above). VII. CONCLUSIONS 48.For the above reasons, I allow the appeal relating to Dr Chung’s report and dismiss the appeal concerning Dr Wong’s report with consequential directions as follows:
49.I also make an order nisi that the costs of the application before Master B. Kwan be costs in the cause and that the costs of this appeal be to the 1st, 3rd and 4th Defendants in any event, both to be taxed if not agreed. 50.Lastly, the Plaintiff’s own costs should be taxed in accordance with the Legal Aid Regulations.
Mr. Andy Hung, instructed by Messrs Pansy Leung Tang & Chua, assigned by Director of Legal Aid for the Plaintiff Ms. Queenie W.S. Ng, instructed by Messrs Gilbert Tang & Co., for the 1st, 3rd & 4th Defendants
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