Lau Kwai Yin v. Tack Hsin Restaurant (London) Ltd and Another

HCPI 927/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 927 OF 2013

_________________________

_________________________

______________

D E C I S I O N
______________

1.This is a personal injury claim involving an alleged explosion of a wok range resulting in burnt injuries. The plaintiff is seeking leave to adduce an expert report on liability.

Background

2.The plaintiff was employed by the 1^st defendant as a chef in the 1^st defendant’s restaurant, and the 2^nd defendant was the company which installed and maintained the wok ranges in the restaurant.

3.On 12 April 2009, the plaintiff claimed that he found a malfunction of the pilot flame of the wok range and had reported to his supervisor, and when later he tried to switch on the main burner valve, there was an explosion which caused the wok to tip over, spilling hot oil on the plaintiff causing burn injuries.

4.According to the Hong Kong and China Gas Company Limited Incident Report and the Accident Report of the Labour Department: -

(a) the wok range was inspected on the afternoon of the day of the accident by the Hong Kong and China Gas Company Limited and again on 14 April 2009 jointly with the staff of the 2^nd defendant and officials from Electrical & Mechanical Services Department and Labour Department;

(b) Repeated “functional / simulation tests and examination” were conducted and the wok range was reported to be “in normal working condition” with “no abnormality found in the functional test” and “various scenarios were simulated during the simulation tests” but “the said problem was not repeated.”

(c) The gas piping and other gas appliances at the scene were also inspected and no defects or gas leakage found.

(d) As “no abnormality could be observed, the cause of the accident could not be ascertained”.

5.Despite this, all the major components of the wok range were replaced subsequently.

6.The plaintiff now sought to adduce an expert report by Dr Eric Lim of “Safety, Accident, and Failure Experts Limited”.

7.Dr Lim has based his opinion entirely upon information contained in various documents (eg the Accident Report, various declarations of various witnesses including the plaintiff, medical reports and correspondences between the plaintiff’s lawyers and other parties etc).

8.Under the section titled “Discussion”, Dr Lim admitted that: -

“I have not been able to examine the wok range, in particular, those parts that were in use at the time of the accident, to allow me to collect sufficient evidence to determine the cause of the accident.”

9.I would expect any reasonable expert to finish his report right there.

10.Somewhat surprisingly, after this very statement, Dr Lim appeared to be quite capable of determining the cause of the accident in a very detailed manner.  “On the basis of the limited information and evidence available”, Dr Lim concluded that (as I summarised): -

(a) clogging debris that had previously been dislodged by a staff of the 2^nd defendant using a pin had “re-clogged” the pilot flame orifice by gas pressure;

(b) at the same time, it was “possible” that another piece of debris caused incomplete closure of the safety valve;

(c) despite that the flame detector was apparently functioning, “if” the operator (meaning the plaintiff?) had not fully closed the main burner valve, and with the pilot flame having “most likely” gone out, a slow supply of gas “probably” leaked through the gas supply line to accumulate in the burning chamber;

(d) “one possible cause” of ignition causing explosion of this accumulated gas was that the plaintiff “could have” pressed the pilot flame ignition switch or had used an igniter, or the gas being ignited by other ignition source such as electrical sparks;

(e) However, the tell-tale debris clogging both the pilot flame orifice and safety valve “could have been vibrated off by the explosion” so no such evidence was detected by subsequent investigation;

(f) And therefore, if the pilot flame orifice had been properly cleaned or replaced by a new one, “the accident would likely have been avoided”, and the supervisor (staff of 1^st defendant) should have stopped the plaintiff from continuing to use the wok range pending “proper inspection and repairs”.

11.In face of this obvious self-contradiction, Ms Loh, Counsel for the plaintiff, argued that this would only go to the weight of Dr Lim’s opinion.

12.The problem facing the Court is no different from assessing evidence adduced by “Road Accident Reconstruction” experts.  It has been said that: -

“For certain types of analysis it is critical that an appropriate examination of the crash scene be conducted to provide the basic information from which well-founded inference may be drawn”

(Hon Seagroatt J in Cho Kam Chuen v Tse Chi Hung (HCPI 170/2000), quoting from a publication entitled “Expert Evidence” (1993) Frecketon & Selby)

13.Dr Lim’s “analysis” of the cause of the accident clearly went into great details on a chain of events of how the accident happened.

14.In putting forward his detailed “analysis”, Dr Lim has not examined the accident scene nor the wok range in question, either on his own or jointly with the various officials during the examination/testing sessions.

15.As such, Dr Lim would have no first-hand account of exactly what inspection and tests were performed and, more importantly, how they were performed: eg he would not know whether any evidence might have been missed, what the officials were informed of as the circumstances of the accident, whether the “simulation tests” properly duplicated such alleged circumstances, whether all other reasonably possible scenarios (including those that the officials were not informed of but could reasonably envisaged) were simulated etc.

16.Dr Lim did not even state that he has ever inspected a physical sample of the wok range of the same model, or that he has any experience or expertise in this particular wok range model, let alone any tests he conducted on a sample in order to simulate different accident scenarios including his own scenario.

17.The possible variables and scenarios regarding this accident may potentially be numerous and many questions can only be answered by those who have actually attended the accident scene and conducted the tests.

18.It is clearly vital in this case that

“an appropriate examination of the crash scene be conducted to provide the basic information from which well-founded inference may be drawn”.

19.Instead, Dr Lim has simply put forward one untested hypothesis (which might “fit” all the second-hand and limited information gleamed from documents he read) using speculative words like “if”, “possible”, “probably” and “could have” etc without any quantification, evidence or data on occurrence of such events either from his own testing or from any published reports or literature.

20.This is more of an exercise of the imagination than a proper scientific venture and therefore has no probative value to the court.

21.It is trite law that probative value of the expert evidence is a fundamental consideration for the Court to grant leave to adduce such evidence (Chan Kwok Ming v Hitachi Electric Service Co (HK) Ltd (HCPI 322/2002)).  With the CJR, there is simply no justification for incurring time and costs to adduce an “arm-chair theory”.

22.I would therefore dismiss the application and would award costs of and occasioned by the application to the defendant to be taxed if not agreed with certificate to Counsel.  The plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

Ms Phillis L P Loh, instructed by Cheung & Liu, for the plaintiff

Mr Wong Chi-kwong, jointly instructed by Munros, for the 1^st defendant,and Chan & Chan, for the 2^nd defendant