Alan Deakins v. Leung Kwong Wai Humphrey

HCPI 617/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 617 OF 2007

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BETWEEN

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Before : Hon Yam J in Chambers

Date of Hearing : 21 August 2009

Date of Decision : 21 August 2009

Date of Handing Down Reasons for Decision : 26 August 2009

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REASONS FOR DECISION

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1.The defendant applied for leave to appeal from my Order of 6 July 2009 whereby I have refused the defendant leave to file and serve the following further “3 statements” of :

(1) the defendant dated 23 June 2009;

(2) his wife, 23 June 2009; and

(3) an Expert Report of Frederik Brink of Trackman dated 17 June 2009 seeking also to produce a Trackman Report dated 24 March 2009.

2.Historically, the application for leave to adduce the aforesaid “3 statements” arose in the following manner :

(i) On 24 June 2009, the defendant suddenly disclosed for the first time the 3 statements. A bundle of them was lodged with this court on the same day at about 5:30 p.m. It was marked :

“To be lodged only

For 3^rd PTR on 30/6/2009 at 9:30, a.m.

before The Honourable Mr. Justice Yam”

There was no application by summons for anything at the 3^rd PTR or whatever.

(ii) On 29 June 2009 at about 12:55 p.m., this court received a lengthy submission from Mr Ozorio SC for the plaintiff. He objected “in the strongest possible terms to the new expert evidence and the supplementary witness statements of the Defendant and his wife” (i.e. “the 3 statements”).

(iii) At 14:46 and 15:39, we received 2 letters from Mr Russell Coleman SC saying that the 3^rd PTR was just fixed for 30 minutes but he had received a lengthy submission from Mr Ozorio. Thus, 30 minutes would not be enough for argument, presumably for his client’s application for leave to adduce the 3 statements. Besides he got a 10 o’clock matter before the Court of Appeal. He suggested to adjourn the 3^rd PTR after 30 minutes hearing to 4:30 p.m. or to a date to be fixed for argument in consultation with counsel’s diaries.

(iv) On the next day 30 June 2009, both counsel agreed that the argument would at least take 1 hour but Mr Coleman had no written submission before court yet. Since the matter is quite urgent and important as the milestone date of trial will commence on 14 September 2009, this court “squeezed” out a date on 6 July 2009 at not before 2:30 p.m., hoping the other case for summary judgment fixed at 10 a.m. for 1 day would finish before the lunch break. Directions were given for Mr Coleman to file and serve his submission on/before 2 July 2009 and Mr Ozorio’s in reply on/before 4 July 2009.

(iv) On 6 July 2009, after hearing counsel’s submissions, I delivered my ex tempore ruling refusing to grant leave to the defendant to adduce the 3 statements.

3.The aforesaid chronology of events showed that nowadays, the court would be slow to grant indulgence to the parties which would affect the milestone date of trial which was fixed way back on 18 December 2008. In the same spirit, this court has tried very hard to accommodate the parties for an earliest possible date to dispose of this matter albeit that the defendant had not even taken out a summons to be heard at the 3^rd PTR or even subsequently before/after the adjourned hearing on 6 July 2009.

4.The main ground of refusal is delay of the defence in preparing the 3 statements as follows :

(i) The defendant and his wife’s statements on the sequence of play by 3 members of their group on the 14^th tee that day was seeking to support that the ball that hit the plaintiff might not be the defendant’s ball. But that sequence of play has been known to the defendant and his wife since day one of the accident on 23 December 2006. This should be included in their earlier statements or at least by way of 2^nd statement in March 2009.

(ii) The defendant and his wife had conducted a “shout test” on 30 September 2008 from the 14^th tee to see whether one could hear the shout at about the spot where the plaintiff had been hit. This test was conducted in the presence of the defendant’s solicitor and counsel together a Mr Hideo Nakamura, a paralegal and Mr Kevin Hind, the Director of the Clearwater Bay Golf Club. Again this test which was said to be done way back to September 2008 had not been disclosed at least :

(a) by 23 December 2008 when there was a site inspection by the court;

(b) 20 February 2008 after the plaintiff’s expert Mr N.H. Fletcher related a shout test done by him on 22 December 2009 allegedly in a similar situation on the day of the accident with North/North Easterly wind. (Here I consider that the plaintiff’s side should have disclosed this test done the day before so that a shout test could be done on the day of the site visit.) However, the defendant, having been served with Mr Fletcher’s Report, had not taken any step to disclose his own shout test way back in September 2008, until his supplemental statement herein on 24 June 2009. This could and should be done in March 2009. It was not revealed therein what was the wind condition on that day (but I presume we can get some data from the Observatory collected by their station in Waglan Island).

(iii) There is no explanation why there was this inordinate delay in preparing and serving these 2 statements until 24 June 2009. The only explanation from the Bar table was that the defence wanted to do everything in one go. This is wrong as the delay might affect the trial date.

(iv) In respect of Mr Brink’s Expert Report dated 17 June 2009, it actually referred to a Trackman Report on data obtained from the defendant on 24 March 2009 as to his swing which basically concerned with the club head speed of his 7 wood used shortly before the accident. After Mr Brickman’s analysis of those data, he came to the conclusions that :

(a) “the Defendant could under no circumstances have hit the Plaintiff, even with an exceptional shot with the 7 wood if the wind had blown from the East”,

(b) however, “it is theoretical possible but unlikely that the Defendant could have hit the Plaintiff, with a shot with the 7 wood even if the wind had blown from the Northeast …”

(c) “Finally, it is a possibility, that a player from one of the tee areas of the 15^th hole, by accident launched a drive going severely to the left landing close to the accident point.”

5.Apart from the delay of the defence in compiling this Mr Brink’s report shortly before the 3^rd PTR which would certainly affect the milestone date of trial, the defence did not see fit to invite the plaintiff to be present at the test in March 2009, a point strongly raised by Mr Ozorio for the plaintiff. Thus the plaintiff would not know how the test was conducted which his own expert might shed any light in response to the test e.g. its order of accuracy, etc. Further the test was conducted after more than 2 years after the accidents when the defendant said he had not played golf at the Clearwater Bay Club, sold his membership altogether and played occasionally in the Mainland, all of which might have seriously affected his swing and club head speed. Further the suggestion of Mr Brink that it is possible the ball might have been hit by a golfer from the 15^th Tee was not accompanied by any further discovery as to who were playing from the 15^th tee before the defendant’s 4-balls and who might that player be. Thus, I described Mr Brink’s contention as a “wild suggestion”. Furthermore, Mr Brink is an engineer and there had not been any proper application for leave to call an engineer as an expert in this case. There was only leave granted for each party to call one expert in the game of golf. In the end I also came to the conclusion that his Report has no probative value.

6.Finally, it has been submitted by the defendant that in the exercise of my discretion to exclude the 3 statements, I have wrongly applied my own untested knowledge of golf and my interest in the game has inappropriately and wrongly influenced my judgment and prevented me from dealing with the defendant’s application on the proper basis. In fact just on 30 June 2009 I have voluntarily made known to the parties my own qualifications and credential in golf as the parties would not know what I know, so that they could check with their own experts or otherwise. Questions could be put to their own witness or expert and authorities would have to be cited to prove or support certain contentions or thinking. For example I had in mind the requirement to shout “Fore” in Section 1 of the R&A Rules of Golf 2008-2011[1].

7.Further it was submitted that I have applied an inquisitorial approach to the case by obtaining certain data of temperature and wind direction from 2 nearer stations of our Observatory than those data from the Waglan Island station relied upon by both parties. However when those data from 2 other stations were provided to both parties, I have also made known to them that the 2 other stations, though nearer to the 14^th tee which is the highest spot in the golf club, are both sheltered area. Waglan Island is more exposed as the 14^th tee. The data are neutral but some of them seems to favour the defence more in their interpretation. It is open to the parties to explore more if they considered appropriate.

8.The suggestion of the defence is apparently in the submission that I have taken an undue interest in this case. But I think I am interested in all the cases going before me. To my mind, impartiality does not mean indifference, if that is the suggestion submitted by the defence.

Conclusion

9.In the end, by reasons of the aforesaid matters and my “Ruling” made on 6 July 2009 (and even without my own personal knowledge of the game of golf) I came to a firm conclusion that :

(a) the appeal has no reasonable prospect of success; and

(b) there is no other reason in the interests of justice why the appeal should be heard

pursuant to section 14AA(4) of the High Court Ordinance, Cap. 4.

10.Accordingly I have dismissed the defendant’s application on the date of the hearing with costs to the plaintiff in any event.

Mr Damien Laracy of Messrs Laracy & Co., for the Plaintiff

Mr Russell Coleman SC, instructed by Messrs JSM, for the Defendant