Lai Ying v. Lam Lung Tin and Another

HCPI 313/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 313 OF 2009

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BETWEEN

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Before: Hon Fung J in Chambers

Date of Hearing: 4 March 2010

Date of Decision: 4 March 2010

Date of Reasons for Decision:  16 March 2010

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REASONS  FOR  DECISION

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1.The 1^st and 2^nd Defendants took out a summons for admission of the report of Dr Rattenbury, seat belt expert.

2.I dismissed the summons at the hearing and now give my reasons.

3.The Plaintiff suffered a tragic accident on board a taxi.

4.The Plaintiff was the back seat passenger behind the driver on board KH4459.  KH4459 was travelling eastbound on Morrison Hill Road towards Sports Road crossing the junction with the lead road towards Queens Road East.  The 1^st Defendant was driving taxi KW 407 (owned by the 2^nd Defendant) southbound along the lead road.  KW407 failed to stop at the stop sign before the junction, and its front hit the nearside (left) rear of KH4459.  Mr Leung Kin-on saw KH4459 tilt 45° to the right, and its nearside (left) wheels lost contact with the ground.  KH4459’s offside (right) rear door hit the road railing on the right and was ripped open.

5.The ambulance man saw the offside door of KH4459 was open, the Plaintiff was not wearing a seat belt, and his upper body was leaning outside the taxi with injuries on his forehead and a pool of blood on the kerb.

6.The 1^st Defendant was convicted of dangerous driving.

7.The Plaintiff had a fractured skull and traumatic injury to his optic nerve.  He suffered tetraplegia, mental incapacity and vision loss.

8.The Plaintiff’s pleaded case denied failure to wear a seat belt. 

9.The Government forensic scientist examined the seat belt and stated no conclusive opinion could be given whether the rear passenger had fastened the seat belt or not.

10.The Defendants had served on the Plaintiff notice to admit the fact that he was not wearing seat belt at the time of the accident.  There was no admission under it.

11.Dr Rattenbury sought to gave an opinion on:

(1)     Whether the Plaintiff was not wearing a seat belt at the time of the accident;

(2)     Whether the wearing of the seat belt would have prevented/reduced the Plaintiff’s injuries, and if so, what difference.

Legal principles

12.The Court has inherent power to rule on admissibility of expert evidence at the pre-trial stage (Woodford & Ackroyd (a Firm) v Burgess [2000] CP Rep 79; Wong Hoi Fung v American International Assurance & anor HCA 4576/2001 (8 October 2002) per Chu J).

13.Expert evidence on liability in road traffic cases is the exception rather than the rule (see Liddell v Middleton [1996] P36 (CA); Leung Ping Yeung & ors v Jetour Holiday Ltd HCPI 707/2008 (5 February 2010)).

14.Where the expert evidence is plainly inadmissible or irrelevant, the Court ought to exercise its discretion to admit it (see Wong Hoi Fung supra para. 11).

15.In ruling on admissibility, Hale LJ (as Baroness Hale then was) said in Mann v Messrs Chetty and Patel (a Firm) [2001] CP Rep 24 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.”

16.Where the Court cannot form a clear view on the relevance of the proposed expert evidence, it should grant leave for the evidence to be adduced at the trial (see Wong Hoi Fung supra para. 11).

Discussion

17.Upon the framing of issues, Mr Leung, for the Plaintiff, admitted that without prejudice to any other injuries (including the trauma to the optic nerve) and/or other bodily contact inside the rear compartment of the taxi, the Plaintiff admitted that his forehead injury was sustained when his upper body was outside the taxi and at the time he was not wearing a seat belt.  That practically deals with the need of Mr Rattenbury’s opinion on issue (1).

18.Be that as it may, Mr Sakhrani, for the Defendants, sought to admit Dr Rattenbury’s report on issue (2) in consideration of contributory negligence.

19.Dr Rattenbury had not seen KH4459, but only photographs of the damage, witness statements, and medical reports of the Plaintiff.

20.With respect, I do not find Mr Rattenbury’s evidence cogent or helpful on the proper function of the seat belt in the present case:

(1)     He noted KH4459’s door was severely damaged implying it must have been opened during the impact (p. 8), but somehow concluded the damage to the 2 taxis were not particularly severe (p. 11), and the 2 impacts to KH4459 were of relatively moderate energy (p. 12). 

(2)     He was supplied with the statements of eye witness Mr Leung but had not commented on KH4459 leaving the ground.

(3)     He had not considered the possibility of the seat belt being disengaged by such impact that could force open the door.

21.Mr Sakhrani submitted that it was perhaps layman’s logic that an impact forcing open a car door could perhaps also unbuckle a seat belt, but agreed that Mr Rattenbury should have considered the issue of seat belt and gave an opinion on the point.  He asked for the report to be admitted on issue (2), and be supplemented by a single or joint report afterwards.

22.It is the duty of the expert to present a well considered report (dealing with points for and against those instructing him/her) with explanation and reasoning understandable by a layman, rather than a half baked opinion asking for the chance to make good the remaining.

23.In the event, I refused admission of the report.

Costs

24.Since much sought to be achieved by the report was dealt with by the belated admission by Mr Leung, I ordered costs of the summons be in the cause.

Mr Raymond Leung, instructed by Messrs Woo, Kwan, Lee & Lo, for the Plaintiff

Mr Ashok Sakhrani, instructed by Messrs Y T Chan & Co., for the 1^st and 2^nd Defendants