CHAN WAI YING the Administratrix of the Estate and on behalf of the dependants of TSAI CHUNG YUNG deceased v. SIN KIT SANG & Others HCPI 805/2006

S’s words:-
Another classical case that an application for adducing expert evidence on liability is rejected. Lamborghini being the subject vehicle of the traffic accident involved could not convince the Court that it was an extraordinary case.

---

Date of Handing Down : 31 May 2007

“This is my Decision on the Application by ... , the solicitors for the 3rd and the 4th defendants for leave to adduce 2 expert’s reports compiled by Professor McKay. One report relates to the seatbelt issue, and the other relates to liability.

This action arises out of a road traffic accident on 25 July 2004. The deceased was a 46 year old contractor who had boarded the 3rd defendant’s taxi just before the Lamborghini driven by the 1st defendant ploughed into the side of the taxi, as the taxi was making a U-turn. The deceased sustained serious injuries and died soon after.

As was explained by Stuart Smith LJ in the famous case of Liddell v Middleton, 1996 PIQR 36, that section of the legislation “in no way extends the principles upon which expert evidence is admissible.” His Lordship went on to say that “An expert is only qualified to give expert evidence on a relevant matter, if his knowledge and expertise relate to a matter which is outside the knowledge and experience of a layman. And the reference to an “issue in the proceedings in question” relates to a factual issue and not to the conclusion of law based upon such fact.”

The case of Liddell V Middleton was quoted with approval by Mr Justice Seagroatt in Cho Kam Chuen v Tse Chi Hung, HCPI 170/2000.

An authority in the area of admissibility of expert evidence which provides a helpful summary is the judgment of the Mr Justice Suffiad in Chan Kwok Ming v Hitachi Electrical Service (HK) Ltd, HCPI 322 of 2002. The judge sets out the proper criteria to be applied to determine whether any expert report can and should be admitted in evidence in paragraphs 20 to 27, explaining how the elements of relevance, necessity and probative value are to be applied.

n summary therefore, in the application of the relevant principles on whether to give leave to adduce evidence of expert witnesses, the following matters must be considered: (a) whether the proposed expert witness has the requisite qualifications; (b) whether his “knowledge and expertise” is outside the knowledge and experience of the layman, i.e. will his evidence be “relevant” within the meaning of Liddell v Middleton; (c) whether the expert’s evidence will only “relate to a factual issue and not to a conclusion of law based upon such fact” within the meaning of Liddell v Middleton; (d) Whether the applicant complied with the procedure set out in O38 r36; and (e) Whether the applicant has shown that the “expert evidence” is “necessary”, “relevant”, and has “probative value” within the meaning of the Judgment in HCPI 322 of 2002.

Based on that evidence of contact with the interior of the taxi, Professor McKay built up his argument on the seatbelt issue. That piece of evidence showing points of contact between the deceased and places inside the taxi would have been available to the trial judge without the McKay report. There is no reason why the trial judge cannot apply his common sense in the same manner as the Professor. Moreover, it has not been shown that the contents of the report relate to anything “outside the knowledge and experience of a layman”. It is not outside the knowledge and experience of a layman that a person not wearing a seatbelt would probably have hit his head against the window frame and the pillar between the front and rear doors. It is not outside the knowledge and experience of a layman that a person not wearing a seatbelt would probably have sustained the laceration to his liver when the right side of his body was thrown violently against the door. For all the reasons given, I find that the criteria of “relevance”, “necessity” and “probative value” are not met, and decline leave to adduce the report dealing with the seatbelt issue.

I am of the view that the trial judge, armed with all the materials from the Magistrates’ Court and with all the oral evidence of the witnesses, will be in a position to decide whether the taxi driver was negligent when he made that U-turn, thereby placing the flank of his taxi directly in the path of the Lamborghini. Furthermore, the trial judge will only need to work out the approximate speed of the oncoming vehicle when the taxi started the U-turn. Knowledge of the exact speed of the Lamborghini will not be necessary in the circumstances, as there is also information of the locus in quo in the form of sketches, photographs, agreed distances and the evidence of several eyewitnesses.

For all the reasons given, I dismiss the application by the 3rd and 4th defendants to adduce the reports compiled by Professor McKay both dated 17.2.07 on the seatbelt issue and on the liability issue.”