Lam Ngau v. New World First Ferry Services Ltd

HCPI 693/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 693 OF 2007

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BETWEEN

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Before:  Hon Fung J in Chambers

Date of Hearing:  11 February 2010

Date of Decision:  11 February 2010

Date of Reasons for Decision:  12 February 2010

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REASONS  FOR  DECISION

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1.The Defendant is appealing against the Master’s decision in admitting the Plaintiff’s expert report on liability.

2.I dismissed the appeal, and ordered a joint report by the respective experts.  I now give my reasons.

Background

3.The Plaintiff was a sailor.  The Defendant is the owner of the ferry “Xin Xing”.

4.On the day in question in 2004, the Plaintiff was on board MV Xin Xing.  He was to handle the rope in mooring to the pier.  He would throw the “messenger” or heaver line (i.e. a lighter rope with a weighted knot at one end and attached to a heavier plaited rope at the other end) to the pier and his colleague would catch the heaver line and pull the heavier rope to the bollard.

5.The Plaintiff’s case is that there was insufficient free length of the plaited rope, and he had to haul the rope to lengthen the free end.  During the operation, he sprained his shoulder and back.

6.The rope in question could no longer be identified and produced.  The Defendant has provided the manufacturer data of a rope similar to the one in question: 80 mm diameter, weighing 195 kg.

Plaintiff’s expert report

7.The Plaintiff’s expert, Mr Boffey, Master Mariner, gave a report on the following matters:

(1)     Range of weights of ropes similar in diameters to 80 mm;

(2)     The Codes of Safe Working Practices on mooring published by Maritime Authorities including Hong Kong;

(3)     Manpower and system in handling ropes in mooring.

8.Mr Boffey stated there are two types of ropes: the lighter rope (e.g. 40 mm) and heavier rope (e.g. 80 mm).  The heavier rope is the type thrown with the heaver line, and normally there should be 2 sailors handling it on board the ship.  The operation should normally be supervised by the coxswain.

Master’s decision

9.The Master struck out the section on weights and some concluding remarks pertaining to the ultimate question of liability, and allowed the rest of the report in.  There is no cross appeal by the Plaintiff.

Defendant’s case

10.Mr Chain, for the Defendant, submitted that:

(1) The Defendant now agrees to admission of the Codes of Safe Practice and there is no need for an expert’s comment on them;

(2) Much of the report is background based on witness statements or other materials (including the codes) and are not necessary;

(3) Mr Boffey has never inspected the Xin Xing and the data of the ferry is minimal;

(4) The remaining part on rope handling is of minimal relevance and/or probative value because it is unclear as to what Mr Boffey regards as “normal”;

(5) Alternatively, Mr Boffey should clarify on what is “normal” and “abnormal”, and to state his full qualifications and experience, in particular in relation to ferry as opposed to ocean liner.

11.Mr Chain submitted that even if the evidence is prima facie relevant, the Court must still ask whether it is cogent and helpful in ruling on admissibility, and referred to Mann v Messrs Chetty and Patel (a Firm) [2001] CP Rep 24 per Hale LJ (as Baroness Hale then was) at para. 15:

“Clearly, therefore, the court has to make a judgment on at least three matters: (a) how cogent the proposed expert evidence will be; (b) how helpful it will be in resolving any of the issues in the case; and (c) how much it will cost and the relationship of that cost to the sums at stake.”

Plaintiff’s reply

12.Mr Hung, for the Plaintiff, submitted that evidence of common practice is admissible in considering the legal duty, and referred to Midland Bank Ltd v Hett Stubs and Kent [1979] Ch 384, 402 per Oliver J:

“The extent of the legal duty in any given situation must, I think, be a question of law for the court.  Clearly, if there is some practice in a particular profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received.”

13.He submitted that it is essentially a matter of weight and should be left to the trial judge.

Discussion

14.Mr Chain asked me to follow Mann v Messrs Chetty and Patel.  I say there is a fine line in whether to admit evidence by reason of minimal probative value, as each case must be decided in its circumstances, bearing in mind that every step in litigation must be necessary for the fair disposal of the cause and/or saving of costs and proportional to the issue to be decided. 

15.Be that as it may, it is a far cry to say Mr Boffey’s report is clearly and obviously useless as he has commented essentially that:

(1) There are lighter (40 mm) and heavier (80 mm) ropes;

(2) Based on the manufacturer’s data supplied by the Defendant, the rope in question should belong to the heavier rope;

(3) Risk assessment, personnel consideration and safe system of work are provided for in the various codes of safe practice;

(4) The handling of the heavier rope normally requires 2 sailors;

(5) The operation should normally be supervised by the coxwain.

16.Granted that Mr Boffey has not inspected the ferry, but I see the operation as more rope handling than mooring manoeuvre of the ship. 

17.However, it may be helpful for Mr Boffey to clarify on what is “normal” as opposed to “abnormal”.  Mr Hung did not oppose it, and I allowed it.

18.As to the of Mr Boffey’s resume, Mr Hung also did not object, and it is customarily for experts to list out qualifications and  experience in some details, hence, I also allow it.

19.There are sections in Mr Boffey’s report referring to the ropes as per the manufacturer data supplied by the Defendant (paras. 1.1.10 and last para. of Section 3).  Mr Chain agreed that those data related to rope purchased by the Defendant similar to the one in question.  Hence, those paragraphs should be resurrected in the report.

Joint report

20.Mr Chain pointed out that the Master had allowed the Defendant to file an expert report in reply, if necessary.  He wanted to wait for Mr Boffey’s answers first.

21.I extolled on the virtues of conferencing between the experts before finalizing the report.  Recent experience has shown scope for more agreement and less disagreement upon expert conferencing.  Needles to say, it will also avoid the serial commentaries and replies.  Mr Chain has very sensibly agree to a joint report such that both experts can discuss before commenting on what is normal and what is abnormal requirements.

22.Both parties agreed that the instructions sent to Mr Boffey (with the exception that the Plaintiff was tired having done another shift before as he is seeking to retract that evidence) will now be the joint instructions.

23.I added that the experts are to give an independent opinion to assist the Court, commenting on both strengths and weaknesses of their cases.  Hence, they would be at liberty to raise any issues on the given instructions as considered necessary.

24.I shall order the joint expert report be completed within 3 months from now.  If there is any difficulties, parties should seek directions from the Court in good time such that further delay can be avoided. 

25.I fix a PTR on 3 June 2010 at 10 am, to be dealt with on paper upon indication 7 days beforehand that case is ready for setting down.

Costs

26.Mr Chain asked for no order as to costs as the appeal was dismissed on terms of clarification to be provided by Mr Boffey.  I refused the order because the Defendant had not asked for clarification per se by correspondence, and that was not their primary case.

27.I only allowed 50% of the costs of the hearing to the Plaintiff.  The Plaintiff had not written to invite joint report in the first instance (but only after the Master has allowed Defendant’s report in reply).  I daresay this point on “normally …” would have been picked up in had there been a joint experts’ conference and there needs not be the clarification.

28.The summary assessed costs are $13,000.

29.I did not disturb the Master’s costs order notwithstanding his striking out parts of the report.

30.Lastly, I thank counsel for their submissions.

Mr Andy Hung, instructed by Messrs Chan & Tsu, assigned by the Director of Legal Aid, for the Plaintiff

Mr Christopher Chain, instructed by Messrs Holman Fenwick Willan, for the Defendant