Lo King Fung v. China Overseas Property Services and Others

DCPI380/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 380 OF 2008

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Coram:  H H District Judge Marlene Ng in Chambers (Open to the Public)

Date of Hearing:  22^nd January, 2009

Date of Ruling:    22^nd January, 2009

Date of Handing Down Reasons for Ruling:   4^th February, 2009

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REASONS FOR RULING

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I. Introduction

1.This case came before me for Pre-Trial Review. At the hearing, I gave the following directions :

(a)  leave to the 2^nd Defendant to adopt the 1^st Defendant’s Answer to the Revised Statement of Damages as its Answer thereto;

(b) all relevant provisions of the disclosed contractual documents as agreed by the parties be extracted and included in the section on documents on liability in the trial bundle, and the full contractual documents shall be included in a bundle separate from the trial bundle;

(c)  trial of this case be set down in the fixture list before a District Judge in court at 9:30am on 9^th July 2009 at Court No.6 with an estimated length of 4 days (ie with 10^th, 13^th and 14^th July 2009 reserved);

(d) costs of the Pre-Trial Review be costs in the cause;

(e)  the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations; and

(f)   order made by me to be drawn up.

2.The main dispute before me was whether the Plaintiff should be allowed to adduce expert evidence on liability at trial. At the Check List Review hearing on 30^th September 2008, the learned PI Master directed the Plaintiff to obtain, lodge and serve expert report on liability within 60 days from the date thereof (“CLR Order”). Pursuant thereto, the Plaintiff lodged and served the expert report by Ir Dr Albert So (“Dr So”) dated 1^st December 2008 (“So Report”). At the Pre-Trial Review hearing before me, the 2^nd Defendant opposed any expert evidence on liability whilst the 1^st and 3^rd Defendants took a neutral stance. After hearing submissions from Ms Ng, solicitor for the Plaintiff, and upon considering the written submissions of Ms Ng and Mr Leung, solicitor for the 2^nd Defendant, I declined to grant leave for expert evidence on liability to be adduced. These are my reasons.

II.   Plaintiff’s claim

3.At about 11:45am on 30^th April 2005, the 4½-year-old Plaintiff entered a lift (“Lift”) on the second floor of Yung Shing Shopping Centre (“Centre”) with a foreign domestic helper (“Helper”). They stood near the car doors since the Lift was quite crowded. The Lift descended to and arrived at the ground floor of the Centre. As the car doors opened, the Plaintiff’s right forearm was trapped up to the elbow at the clearance (“Clearance”) between the right side (as viewed from inside the Lift) car door panel (“Panel”) and the adjoining column (“Column”) (“Accident”). Staff of the 1^st Defendant (ie the property management agent of the 3^rd Defendant in respect of the Centre) noticed from the CCTV monitor in the control room that the Plaintiff was trapped, and went to the scene to give assistance. Attempts to free the Plaintiff were unsuccessful. The Plaintiff was eventually released by firemen who came shortly to the rescue.

4.The Helper has left Hong Kong and will not be giving evidence at trial. But the 1^st Defendant has the videotape recording from the CCTV monitor in respect of the Accident (see memorandum from the Director of Housing dated 27^th April 2006).

5.On 18^th May 2005, Mr Arthur P T Cheung (“Mr Cheung”) prepared a report (“Cheung Report”) pursuant to a joint examination carried out by (a) the Lift Ordinance Enforcement Unit (“LOEU”) of the Housing Department and (b) the 2^nd Defendant (ie the maintenance contractor of the 3^rd Defendant in respect of the Lift) at about 2:15pm on the day of the Accident.

6.According to the Cheung Report, after the Accident the Lift was suspended from further use pending investigation. From the trace of blood on the Column, the trapping occurred at about 800mm above the car floor. At about 300mm below the trapping position, a 5mm deep indentation was found on the surface of the Column. The middle of the Panel was deformed by about 3mm at a level from the car floor that was almost the same as the indentation on the Column. The Clearance between the Panel and the Column was in the range of 5 to 12.5mm with the maximum exceeding the tolerable limit of 10mm. It was believed that the indentation on the Column, the deformation of the Panel and the excessive Clearance between the Panel and the Column were the results of the firemen’s rescue operation. Upon further examination of the Column, no sharp edge was found at and near the trapping position.

7.The Cheung Report went on to say that :

“Nevertheless, the additional safety guards installed to reduce the possibility of trapping at the [Clearance] were found to be ineffective. The safety guards had lost their elasticity and could not return to their originally intended positions, resulting in larger-than-expected clearances, which could reach the tolerable limit of 10mm. …… [The 2^nd Defendant] was asked to remove the ineffective safety guards and make good the imperfections created by the rescue operation. Rectification work was completed the following day and service of the lift was resumed at 7:00 p.m.”

8.The Cheung Report mentioned a possible cause of the Accident as follows : “[the Plaintiff] had apparently placed his right arm against the RHS car door panel whilst the lift doors were opening, resulting in the accident”.

9.According to a letter from the Fire Services Department dated 4^th January 2007, it was said that the firemen inserted a crowbar and a pry axe at the Clearance between the Panel and the Column to widen it in order to release the Plaintiff’s forearm during the rescue operation, but the firemen did not damage the safety guards or cause their failure. “Such component had not been subjected to any force throughout the entire extrication.”

10.According to the Code of Practice on the Design and Construction of Lifts and Escalators (“COP”) published by the Electrical and Mechanical Services Department (“EMSD”) in 1993, clause 4.5.3 provides that in respect of car doors “[the] clearance between panels (when closed), or between panels and uprights, lintels or sills, shall not exceed 6mm. This value shall be as small as possible and, due to wear, may increase but shall not exceed 10mm in any case”.

11.According to the Code of Practice for Lift Works and Escalator Works published by the EMSD, clause 4.5.1 provides that to keep the lift and accessories in good working order, at least the applicable items in (a) to (w) therein (which does not expressly include safety guards) are to be checked for proper condition, and attended to if necessary, in accordance with a schedule recommended by the manufacturer.

12.Against the above background, the Plaintiff by his next friend commenced the present proceedings against the 1^st and 2^nd Defendants and the owner of the Lift (ie the 3^rd Defendant) for loss and damages as a result of the Accident which the Plaintiff claimed arose out of their negligence, breach of professional/statutory duties and/or breach of the common duty of care.

III.  Defence of the 1^st, 2^nd and 3^rd Defendants

13.The 1^st Defendant denied liability and claimed inter alia that :

(a)  it had reasonably entrusted the repair and maintenance of the Lift to the 2^nd Defendant;

(b) relevant warning notices were displayed inside the Lift;

(c)  its staff had used best endeavours to help the Plaintiff as soon as practicable after the Accident; and

(d) if the safety guards were defective and the Clearance between the Panel and the Column larger-than-expected, they were caused by the rescue action(s) of the firemen.

14.The 2^nd Defendant denied liability. It was the 2^nd Defendant’s case that the Clearance between the Panel and the Column was subject to periodic checks/inspections to ensure it did not exceed the statutory limit of 6mm. At the last inspection on 25^th April 2005 (ie 5 days before the Accident), such Clearance was found to be within the statutory limit. At all material times, the safety guards (supplied and installed by an independent contractor whom the 2^nd Defendant was entitled to rely) were maintained in an efficient state, and no apparent defect was found at the last inspection on 25^th April 2005. The 2^nd Defendant claimed inter alia that :

(a)  it had discharged its duties under the service and maintenance contract for the Lift and under the requirements under the Lifts and Escalators Ordinance Cap.327 by conducting periodic checks/inspections;

(b) warning notice and sound device that gave warning to passengers to keep away from the car doors were installed;

(c)  it had done all it reasonably could to prevent the Accident;

(d) if the Accident happened as alleged, it could not have happened without the Plaintiff wrongfully interfering with the safety guards and/or putting his right fingers into the Clearance between the Panel and the Column access to which had been prevented by the safety guards;

(e)  if the safety guards suffered from any defect, such defect did not pre-exist the Accident;

(f)   if any such defect pre-existed the Accident, it was not reasonably foreseeable and/or could not have been detected despite reasonable checks/inspections.

15.The 3^rd Defendant denied liability and claimed inter alia that :

(a)  the Lift including the safety guards were under regular inspection and maintenance by the 2^nd Defendant;

(b) it had selected with due care the 1^st Defendant as its property management agent for the Centre and reasonably delegated to the 1^st Defendant the duty to keep the common areas of the Centre free of hidden dangers to users, and was generally satisfied with the competency of the 1^st Defendant;

(c)  it had selected with due care the 2^nd Defendant as its lift maintenance contractor and reasonably delegated the maintenance and repair work of the lifts of the Centre to the 2^nd Defendant, and was generally satisfied with the competency of the 2^nd Defendant;

(d) it had taken reasonable steps to satisfy itself that the 1^st and/or 2^nd Defendants were competent and that the management work and maintenance/repair work of the lifts of the Centre had been properly done;

(e)  it had reasonably delegated the supervisory role in relation to the performance of the 2^nd Defendant to the 1^st Defendant, and the 2^nd Defendant’s performance was reported to be satisfactory;

(f)   it had relied on the expertise/skills of the technicians of the 2^nd Defendant during regular checks/inspections of the Lift;

(g)  the performance of the 2^nd Defendant was under regular review by the 1^st Defendant;

(h)  the 3^rd Defendant would run regular meetings with contractors including the 2^nd Defendant to review inter alia the problems discovered in respect of lifts owned by the 3^rd Defendant;

(i)    if the 1^st and/or 2^nd Defendant were incompetent, the 3^rd Defendant had no knowledge that the 1^st and/or 2^nd Defendant were incompetent and/or not discharging their work competently.

16.The 1^st, 2^nd and 3^rd Defendants also claimed that the Accident was caused solely or contributed by the negligence of the Helper. The 3^rd Defendant also claimed that the Accident was caused solely or contributed by negligence and/or breach of statutory duty by the 1^st and/or 2^nd Defendants.

IV. So Report

17.In the So Report, Dr So recited the documents provided to him and the background information extracted therefrom, including the matters in paragraph 3 above. He added that the photographs showed the Column was equipped with safety guards to reduce the possibility of trapping at the Clearance between the Panel and the Column.

18.It is useful to set out paragraphs 9-13 of the So Report under the heading of “The Analysis and Conclusion” in their entirety :

“9.   According to [the Cheung Report], the Lift was installed in 1999. Therefore, it should comply with the [COP] published by [the EMSD] in 1993 (the COP hereinafter).

10.   According to clause 3.1 of the COP, “The clearance between panels (when closed) (of Landing Doors), or between panels and uprights, lintels or sills, shall not exceed 6mm”. All these refer to solid objects, not elastic guards.

11.   According to Clause 4.5.3 of the COP, “The clearance between panels (when closed) (of Car Doors), or between panels and uprights, lintels or sills, shall not exceed 6mm”. All these refer to solid objects, not elastic guards.

12.   According to [the Cheung Report], due to the deterioration of elasticity of the safety guards, the clearance could be up to 10mm, thus producing a dangerous gap for arms of minors to be trapped inside.

13.   Although the 2^nd Defendant claimed to have checked the clearances periodically in his Defence, it seems that he failed to check the elasticity of the safety guards. He should be well aware that the relevant clause in the COP refers to solid objects, but not elastic guards. By simply measuring the clearance without checking the elasticity, he did not do whatever needed to ensure compliance with the COP.”

V.   Witness statements

19.The Plaintiff filed the witness statement of Mr Lo Wai Hung who is the father of the Plaintiff. Mr Lo did not witness the Accident, but he suspected there was an attempt to destroy evidence by replacing the safety guards after the Accident. He also referred to post-Accident conversations when he was told by lift maintenance worker that the Panel’s chrome material would have a suction effect particularly on a sweaty hand in an air-conditioned environment, and that there were trapping accidents on other lifts of the same model.

20.Although there was no plea in the Statement of Claim (a) that the Accident was caused by the material of the Panel or (b) of any reliance on similar accidents on other lifts of the same model, it is more appropriate for the trial judge to deal with admissibility of such evidence.

21.The 1^st Defendant filed the witness statements of Mr Young Wai Kwan (who joined the 1^st Defendant after the Accident) and Mr Wan Wing Yin (who was the 1^st Defendant’s estate assistant). Mr Young spoke of the 1^st Defendant’s relationship with the 3^rd Defendant and the usual responsibilities of the 1^st Defendant in relation to building services. Mr Wan was the one in the control room who observed from the CCTV monitor the trapping of the Plaintiff’s forearm by the Lift, and he went to offer assistance to the Plaintiff. He confirmed that (a) the 1^st Defendant was not required to deal with the operation and maintenance of the Lift since the 3^rd Defendant sub-contracted such duties to the 2^nd Defendant, and (b) the 2^nd Defendant carried out regular weekly or biweekly maintenance of the Lift as well as ad hoc/emergency maintenance and repair. The 2^nd Defendant’s workers who conducted regular maintenance would sign the 3^rd Defendant’s monthly log, which was also endorsed by the 1^st Defendant’s staff.

22.The 2^nd Defendant filed the witness statements of Mr Tse Yan Kuen (who was a registered lift/escalator engineer of the 2^nd Defendant), Mr Pang Chi Ming (who was a senior engineer of the 2^nd Defendant) and Mr Wan Hing Yu (who was a technician employed by the 2^nd Defendant).

23.Mr Tse examined the Lift with Mr Yeung of the 3^rd Defendant on the day of the Accident and prepared a report (“Tse Report”). The Tse Report stated that the Clearance between the Panel and the Column was “checked maximum to 12.5mm due to released the victim by fireman” and that “[the] victim misused the lift”. The Tse Report further noted that action taken included removal of “the ineffective finger guards recommended by LOEU Mr Yeung”. Mr Tse said he replaced the description of “old type finger guards” (which were installed in about 2001) in the draft Tse Report with “ineffective finger guards” at the request of Mr Yeung. He thought Mr Yeung made the request because the safety guards were rendered ineffective as a result of damage caused by the firemen’s rescue operation. 

24.I pause here to note that it is unclear whether Mr Tse’s reference to Mr Yeung in his witness statement was in fact a reference to Mr Cheung who was the head of LOEU and who prepared the Cheung Report (see paragraphs 6-8 above and paragraph 27 below).

25.Mr Pang oversaw the 2^nd Defendant’s provision of services as to the maintenance, examination and testing of the Lift. He described (a) the on-site periodic checks of the Lift carried out by the 2^nd Defendant’s mechanics pursuant to a yearly schedule prepared in accordance with the recommendations specified in inter alia the COP, (b) the yearly tests and examinations by the 2^nd Defendant’s registered lift engineers for submission of yearly reports to the 3^rd Defendant who in turn would issue Form CLOP-FL2, and (c) the five-yearly tests and examinations carried out on a fully-loaded environment.

26.Mr Wan together with his colleague carried out routine maintenance, examination and testing of the Lift prior to the Accident. He described the schedule of items to be checked for such routine work (especially the Clearance between the Panel and the Column), the timeframe for checking these items, and the method for checking such items (especially the aforesaid Clearance). He explained the structure of the safety guards of the Lift that were installed prior to him being stationed to work at the Centre in 2003. He claimed that each week they would “physically examine the safety guard to see if there was any damage. In particular, [they] would see if the plastic-like material of the safety guard was functional in terms of enclosing the clearance but at the same time not affecting the opening and closing of the lift car door”. He said that at the routine weekly check on 25^th April 2005, they found “the clearance was (and had been) within the prescribed limit of 6 mm and that the safety guard was functional as described. No apparent defect was found as to the safety guard in particular as to its plastic-like material”.

27.The 3^rd Defendant filed the witness statements of Mr Lam Wai Chung (who was an acting housing manager of the 3^rd Defendant) and Mr Cheung (who was a senior building services engineer and head of the LOEU of the 3^rd Defendant). Mr Lam described the contractual relationships between the 1^st and 3^rd Defendants and between the 2^nd and 3^rd Defendants as well as the role of the 3^rd Defendant in monitoring the performance of the 2^nd Defendant. Mr Lam claimed the records of the 3^rd Defendant showed that the performance of the 2^nd Defendant was considered to be satisfactory. Mr Cheung described the joint examination after the Accident and the contents of the Cheung Report. He said that “from the joint inspection, we were not able to ascertain whether the loosening of the safety guard was pre-existing or happened after the accident”. He claimed that in any event the 3^rd Defendant relied on the 2^nd Defendant to inspect and rectify any defects found during their routine maintenance/inspection and to ensure that the Lift was safe to use.

VI. Legal principles

28.There is no dispute as to the applicable principles on admissibility of expert evidence on liability. I have summarised such principles in paras.36-44 of my decision in Li Siu Ping and Li Siu Yu, the co-administratrices of the estate of Chan Kwok Hung, deceased v Perfecta Dyeing, Printing & Weaving Works Ltd DCPI901/2006 (unreported, 18^th July 2007) and do not propose to repeat the same in detail here.

29.In brief, expert evidence must be relevant, necessary and of probative value. On the requirement of “relevance”, Chu J in Wong Hoi Fung v American International Assurance Co (Bermuda) Limited & anor HCA4576/2001 (unreported, 8^th October 2002) at para.12 said that expert evidence must be relevant in the sense that it is helpful to the court in arriving at its decision on one or more issues to be resolved. The learned judge cited Baring plc (in Liquidation) & anor v Coopers and Lybrand & ors Lexis Transcript, 9^th February 2001, paras.44-45 where Evans-Lombe J said the court can exclude expert evidence if it is of the view that calling such evidence will not be helpful to the court in resolving any issue in the case justly, eg where the issue to be decided is one on which the court can come to an informed decision without such expert evidence.

VII. Expert evidence on liability : discussion

30.Ms Ng gave several reasons for requiring expert evidence on liability. First, she submitted that the 2^nd Defendant could not raise objection now since it did not do so when the learned PI Master by the CLR Order granted leave to the Plaintiff to obtain, lodge and serve expert report on liability.

31.Although the Plaintiff has “first sought and [complied] with directions of the court concerning pre-trial disclosure of the substance of the expert evidence sought to be relied on” (see Order 38 rule 6 of the Rules of the District Court (“RDC”)), he has not applied for leave to adduce expert evidence of any particular area of expertise or specifically from Dr So (see Order 38 rule 4 of the RDC). But even if such directions had been given, Order 38 rule 44 of the RDC allows the court to revoke or vary any such direction on sufficient cause shown. More importantly, Wong Hoi Fung makes it abundantly clear that admissibility of expert evidence is often determined before trial. Where the proposed expert evidence is plainly inadmissible or irrelevant, the court ought to exercise its discretion to refuse admission of such evidence. In the circumstances, I am of the view that the CLR Order does not bar this court from determining the admissibility of the So Report at the Pre-Trial Review.

32.Secondly, Ms Ng submitted that given the youth of the Plaintiff and the unavailability of the Helper there was no eyewitness to the Accident, so it is appropriate to have for expert evidence on liability in this case. But the Accident here is quite unlike the accident in Li Siu Ping and Li Siu Yu, the co-administratrices of the estate of Chan Kwok Hung, deceased where no one saw the deceased crawling into a large machine, and where it was unknown how he died inside the running machine or even which part of the machine caused his injuries/death. Here, as Ms Ng, Ms Tong (solicitor for the 1^st Defendant), Mr Leung and Ms Yeung (solicitor for the 3^rd Defendant) assured me at the Pre-Trial Review hearing, there was no dispute that the Plaintiff’s right forearm was trapped at the Clearance between the Panel and the Column as the car doors opened after the Lift reached the ground floor of the Centre and the Plaintiff suffered injuries as a result of such Accident. The incident was captured on videotape by the 1^st Defendant’s CCTV monitor. Staff of the 1^st Defendant attended the scene almost immediately,and the firemen arrived very shortly thereafter. There were report/letter from the Fire Services Department about rescue action taken at the scene, witness statements from the staff of the 1^st, 2^nd and 3^rd Defendants (including those who arrived at the scene shortly after the Accident and those who carried out the joint inspection of the List in the very same afternoon that resulted in the Cheung and Tse Reports). I am not persuaded that expert evidence is required to assist the court in forming a view as to how the Accident happened.

33.Thirdly, Ms Ng submitted that expert evidence on liability was relevant as there were issues related to complicated machinery. She argued that since the Cheung Report alluding to the ineffectiveness of the safety guards, the matters of operation of the Lift, its capabilities and safety measures and the then practice for carrying out maintenance/repair of the Lift were crucial to determining how the Accident happened and whether the Accident was caused by the negligence of any party. In short, it was suggested that expert evidence on liability would be helpful to the court since the Plaintiff relied on the defects of the Lift as evidence of negligence of the 1^st, 2^nd and/or 3^rd Defendants.

34.I note at the outset that insofar as the So Report is concerned, nothing turns on the design and/or construction of the Lift or on any mechanical and/or engineering defect. The So Report was essentially focused on one matter, ie the condition of the safety guards of the Lift.

35.I have already explained why I consider there is no need to have expert evidence for elucidating how the Accident happened. As regards the issue of negligence or other default of the 1^st, 2^nd and/or 3^rd Defendants, for reasons explained below I am persuaded that the statement of opinion in the So Report serves no useful purpose as regards such issue.

36.Ms Ng, Ms Tong, Mr Leung and Ms Yeung accepted that (a) the Lift was installed in 1999, (b) the COP was applicable, (c) clauses 3.1 and 4.5.3 of the COP referred to solid objects and not the safety guards. In the circumstances, paragraphs 9-11 of the So Report (see paragraph 18 above) state undisputed factual matters rather than any expert opinion. I note further that the Plaintiff was injured inside the Lift, so I am unable to appreciate the relevance of clause 3.1 of the COP which deals with requirements for the clearance between the landing door (rather than the car door) of the Lift and the adjoining column.

37.As regards paragraph 12 of the So Report (see paragraph 18 above), I would say that any extract from the contents of the Cheung Report will be apparent from a plain reading of the report itself, and it is not opinion evidence on the part of Dr So. Insofar as Dr So has come to a conclusion from the Cheung Report (which report states that the Clearance between the Panel and the Column could be up to 10mm) that the gap is dangerous for trapping the arms of minors, it is, in my view, an ultimate conclusion to be drawn by the trial judge if he considers such conclusion appropriate upon evaluation of the evidence before him and not one to be given by the expert. Further, upon reading paragraph 12 of the So Report, I regret to say I am unable to discern any engineering expertise being engaged in drawing such conclusion.

38.Mr Leung complained that the So Report did not faithfully re-render the contents of the Cheung Report, which did not expressly refer to “deterioration of elasticity of the safety guards” as stated in the So Report. I am unable to accept Ms Ng’s argument that Dr So inferred there was deterioration because the phrase “[according] to [the Cheung Report]” in paragraph 12 of the So Report makes it plain that Dr So is purporting to recite the contents of the Cheung Report rather than giving his own expert opinion, but the Cheung Report only mentions that “[the] safety guards had lost their elasticity” without expressly referring to “deterioration”.

39.In further support of his argument, Mr Leung pointed out that Mr Cheung’s witness statement stated he was unsure whether the loosening of the safety guards was pre-existing or happened after the Accident. I have no doubt that such evidence will be tested by cross-examination at trial, so it is unnecessary for me to form any view on these matters save to say they are plainly matters of fact rather than matters of opinion. The issue of, say, whether the 2^nd Defendant’s staff checked the Clearance between the Panel and the Column and the elasticity/functionality of the safety guards during routine maintenance is obviously a matter of fact strictly within the purview of the trial judge who will not be aided in this respect by expert opinion.

40.In paragraph 13 of the So Report (see paragraph 18 above), Dr So opines that since (i) “it seems that [the 2^nd Defendant] failed to check the elasticity of the safety guards” and (ii) the 2^nd Defendant “should be well aware that the relevant clause in the COP refers to solid objects and not elastic guards”, the 2^nd Defendant “did not do whatever needed to ensure compliance of the COP”.

41.As explained in paragraph 39 above, (i) above is a matter of fact and not opinion. Further, even though the So Report puts the regular maintenance of the safety guards in issue in (i) above, Dr So only has access to the pleadings, various post-Accident reports and some photographs, but not the relevant records in respect of the routine maintenance of the Lift prior to the Accident or witness statements of the staff of the 1^st, 2^nd and 3^rd Defendants which give factual information in relation to such work. As Suffiad J said in Luk Wing Nin for himself and other dependants of Luk Yim Ping, deceased v Chevalier (HK) Limited & anor HCPI414/2000 (unreported, 24^th April 2006) at para.85, “[opinions] of experts are only as good as the factual basis upon which those opinions are founded”. Without consideration of the relevant factual assumptions from the documents and/or witness statements, there is concern whether any opinion expressed may be made out of context.

42.As regards (ii) above, the fact that clauses 3.1 and 4.5.3 of the COP refer to solid objects is not disputed, and indeed Mr Pang’s witness statement admits that the 2^nd Defendant’s yearly schedule of periodic checks of the Lift was prepared in accordance with the relevant recommendations in inter alia the COP. In my view, the contents of the relevant clauses in the COP can be easily discerned from reading the COP itself, and there is no need for expert evidence.

43.In my view, drawing conclusion(s) from the factual matters in (i) and (ii) above require evaluation of the facts to be found by the trial judge rather than consideration of expert opinion. The conclusion(s) of fact also depend on whether the factual assumptions can be successfully proved, and on this the trial judge can make his own assessment. Further, it does not appear that Dr So has drawn from his engineering knowledge and expertise in coming to the conclusion in paragraph 13 of the So Report. The court should and will not permit expert evidence unless there is some need for it, and I am unable to identify any in the present case. In my view, the present case is akin to the situation in Tang Chin Ming v Lucky Bakery House Limited & ors DCPI185/2003 (unreported, 19^th May 2004) where the court came to a view on the liability of the defendants in respect of a lift incident upon evaluation of the lay witness evidence and the documents adduced at trial. 

44.Still further, Dr So has not explained how failure to check the elasticity of the safety guards (if such factual assumption is accepted by the trial judge) leads to a failure to comply with the COP when he has been at pains to emphasise that the COP merely prescribes clearance requirements for solid objects and not safety guards. For any expert evidence to be of probative value, the expert should give reasons based on his expert knowledge and experience for his conclusion.

45.In the absence of any inspection of the subject safety guards (since they were replaced shortly after the Accident) and failure to allude to any specific defect in the construction or design of the Lift (other than the alleged loss of elasticity of the safety guards) in the So Report, I am of the view that no purpose will be served in having expert evidence on liability.

46.For all of the above reasons, I have at the Pre-Trial Review hearing refused admission of expert evidence from Dr So in the form of the So Report.

VIII. Postscript : Pre-Trial Review Notices

47.On 23^rd December 2008, the learned Master fixed a Pre-Trial Review to be heard before me, and further directed that “[the] Plaintiff do take out the Notice of Application for Pre-Trial Review within 14 days. The filing of the Notices in Response by the Defendants be dispensed with”.

48.Paragraph 11.3 of Practice Direction 18.1 (“PD18.1”) provides that each party to the action shall file and serve upon any other party a notice in the form annexed thereto as Annex F not later than 7 days before the Pre-Trial Review. It is unclear why the filing of Notices in Response by the 1^st, 2^nd and 3^rd Defendantswas dispensed with in light of the express requirement in PD18.1.

49.But as a result of such directions, I did not have any useful appreciation of the respective stance of the 1^st, 2^nd and 3^rd Defendants in relation to their readiness for trial or their view as to whether there are outstanding matters. Fortunately, the 2^nd Defendant’s solicitors in their wisdom lodged written submissions prior to the Pre-Trial Review to expose their challenge to the admissibility of the Plaintiff’s expert evidence on liability, and much time has been saved by concentration of such contested issue prior to the hearing.

50.However, I was still handicapped by the absence of information or bundle of documents as to the 3^rd Defendant’s claim for contribution/indemnity. Again fortunately, a few pertinent questions from the bench at the Pre-Trial Review hearing showed that the Defendants have made appropriate preparations.

51.But the fact that the Pre-Trial Review in this case went smoothly is no answer for the sensible rationale in paragraph 11.3 of PD18.1 for requiring Notices in Response from the 1^st, 2^nd and 3^rd Defendants, namely, that full information should be placed before the judge hearing the Pre-Trial Review to ensure that all appropriate directions to ready the case for trial can be and are made. In my view, unless there are special reasons (which to me are likely to be rare), paragraph 11.3 of PD18.1 should not be dispensed with if the learned master sees fit to require a Pre-Trial Review be held before the PI Judge or trial judge.

IX. Postscript : directions for expert evidence on liability

52.Pursuant to the CLR Order, the learned PI Master granted leave to the Plaintiff to obtain, lodge and serve expert evidence on liability without identifying the issues on which expert evidence was required or the area of expertise in which opinion evidence was necessary.

53.In granting leave for obtaining and adducing expert evidence, the court needs to be satisfied that expert evidence is relevant, necessary and of probative value to particular issue(s) or question(s) in dispute in the proceedings. If such particular issue(s) or question(s) are not or cannot be identified, it will be difficult to say that any proposed expert evidence on liability is relevant, necessary or of probative value.

54.Further, it is also necessary to identify what area of expertise in which opinion evidence on liability is called for. Even if expert evidence is considered to be relevant and necessary, it will be confusing (if not unhelpful) if one party commissions expert evidence from an expert of one area of expertise and another party obtains expert evidence from an expert of another area of expertise.

55.Still further, even if it is considered relevant and necessary to obtain expert evidence on identified issue(s) in dispute from an expert in a specified area of expertise, the court should also consider the appropriate time for obtaining such expert evidence. Using the present case as an example, even if Dr So’s expert opinion were relevant and necessary (which I disagree), it was plain that his expert opinion would have turned on factual assumptions as to the schedule and adequacy of routine maintenance by the 2^nd Defendant. In such circumstances, it would not have been useful to bespeak such expert opinion before completion of full discovery/inspection of documents or perhaps before service/exchange of witness statements because the expert would require sufficient materials, documents and records for critical evaluation of the claims and/or assumptions in order to give useful expert opinion/report. If it were otherwise, the opinion expressed in the expert report might have been givenout of context, and the expert report so compiled might well have been an exercise in time and costs.

56.In the circumstances, parties when seeking leave to adduce expert evidence on liability and the court when considering whether to grant such leave should be astute to identify (a) the precise matters to be investigated and the specific issues and subjects proposed to be addressed by the expert, (b) the area of expertise in which expert opinion is required, and (c) the appropriate stage of the proceedings when it is opportune for obtaining expert evidence. Proper canvassing of these matters will enable the court decide whether the proposed expert evidence on liability is relevant, necessary and of probative value to the issues in dispute in the proceedings. In this respect I draw comfort from similar sentiments expressed by Registrar Au-Yeung in Wong Kwan Yee v The Incorporated Owners of Diamond Mansion (Nos.466-468 Lockhart Road) & anor in HCA2576/2007 (unreported, 2^nd January 2009). In my view, unless the above matters are properly ascertained, the court should be slow in granting leave for expert evidence on liability.

Representation:

Ms Angel Ng of Messrs Keith Lam Lau & Chan for the Plaintiff.

Ms J Tong of Messrs Henry H C Wong & Co for the 1^st Defendant.

Mr Leung Hon Keung of Messrs Clyde & Co for the 2^nd Defendant.

Ms Doris Yeung of Messrs Deacons for the 3^rd Defendant.