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 (2)

S’s words:-
A few days ago I have just mentioned a judgment made by PI Master that rejected two expert reports on liability be adduced. On 10th July 2007, when the same case was heard by way of rehearing before a single judge, a different conclusion was made.
It is not necessary for me to quote the legal principles again (which is not in dispute).
With due respect, I do not intend to challenge the decision of the PI Master.
However, at least now we can say Lamborghini being a high performance racing car can amount to an extraordinary case that expert evidence on speed can be allowed.
Is it possible that with the support of this case authority, the defendants would again try their efforts to convince judges/masters to allow adducing similar expert reports on liabilty?
Fortunately, we do not have many Lamborghini or other racing cars involved in personal injuries claim.

--- quote from judgment

Before: Deputy High Court Judge Gill in Chambers

Date of Ruling: 10 July 2007

In circumstances and for reasons I shall come to, the 3rd and 4th defendants as a prelude to trial applied to a Master for leave to admit in evidence two reports compiled by Professor Murray McKay. Professor McKay is a pre-eminent expert in the field of road traffic accident investigation and reconstruction.

This is an appeal by rehearing from the Master’s refusal to allow in the second of the two reports.

Determination
Is this an exceptional case?

First, there are witnesses and these include bystanders with no interest in the outcome. But it is likely there will be no reliable account of speed and distances. The capabilities of the Lamborghini are well outside those of the conventional saloon car, and thus outside the experience that a witness and judge can bring to the judicial process.

Secondly, there is already admitted in evidence an expert’s report, and the right for either party to have the author called to be cross-examined on it. But he is a witness of neither party and for different reasons all defendants are critical of his methodology and conclusions. If there is already expert evidence available to the court which one party or another finds wanting, should not that party be entitled to call his own expert to counter it?

In my view, commonsense and justice requires me to treat this case with its particular circumstances as one which falls into the exceptional category; one which calls for an expert with particular expertise of the attributes of a high performance sports car as this Lamborghini.

This will not, as I find, amount to a trial by expert, or experts. This will not be to usurp the proper function of judge, whose role will remain to determine the facts and draw such inferences as he may from them.

In the circumstances, I allow the appeal and grant the application. There will be consequential leave for the 1st and 2nd defendants to call an expert on terms to be agreed, with liberty to apply.