When is it Helpful and Necessary to Hire Experts on Liability?

Introduction

Under general rules of evidence, opinions and conclusions drawn from perceived facts are not admissible. An exception to the above rule is experts’ opinions. Expert evidence, for example, may be given on matters of science, art, trade, identification of handwriting or other expertised areas. Expert opinions are admissible if these can assist the Court in determining an issue, where that issue comprises a subject of which knowledge can be acquired only by training or experience.

Generally, it is not common for a party to a personal injury litigation to be given leave to adduce expert evidence on the issue of liability. In the recent case of Lau Kwai Yin v Tack Hsin Restaurant (London) Ltd HCPI 927/2013 adjudged on 23 December 2015, the Court shed light on the circumstances where it would be proper to grant leave to a party to adduce expert evidence on the issue of liability in a personal injury claim.

Background

This case concerned a burnt case in the kitchen of a restaurant. On the day of accident, the Plaintiff was using the wok range on which a wok that was half-filled with hot cooking oil had been placed. When the Plaintiff switched on the main burner valve, there was a sudden explosion and the wok toppled over, causing the hot cooking oil in the wok to spill out and splash all over him (“Accident”). As a result, the Plaintiff sustained scald and burn injuries and he brought persona injury proceedings against his employer (1st Defendant) and the registered gas installer and maintenance contractor of the wok ranges installed and used in the kitchen (2nd Defendant).

The cause(s) of the Accident was unknown notwithstanding investigation have been done by the Labour Department, the Electrical and Mechanical Services Department, Town Gas and the 2nd Defendant. No defect or abnormality of the gas appliance in question could be observed, and the cause of the Accident could not be ascertained or identified. The Plaintiff relied on and pleaded the common law doctrine of res ipsa loquitur, literally meaning the thing speaks for itself, to establish negligence on the 1st and 2nd Defendants’ part. In essence, the doctrine of res ipsa loquitur is a rule that infers negligence from the very nature of an accident or injury, in the absence of direct evidence that the defendants have been negligent. Both Defendants denied the application of such a doctrine. 2

The Plaintiff employed an expert after the Accident to give opinion on the issue of liability. The expert could not identify a clear cause but he made two postulations on causation (“Expert Report”). One was the accumulation of un-burnt gas in the combustion chamber; the other was “incomplete closure of the safety gas valve controlled by the flame detector”. Subsequently, the Plaintiff applied for leave to adduce the Expert Report which application was dismissed by a High Court Master who rejected the two postulations as being implausible, among other reasons of refusal. The Plaintiff then appealed against the refusal to grant leave.

Leave to Adduce Expert Evidence

The Honourable Mr. Justice Bharwaney presiding the interlocutory appeal, held that in the case, since all accident reports could not identify the cause of the accident, and without the assistance of expert evidence, the Court would have no choice but to conclude that the Plaintiff had failed to prove his case against the Defendants. Thus, to deny the Plaintiff’s application to adduce the Expert Report would cause injustice unless the Export Report was totally devoid of merits and probative value and should be rejected at the outset (which was not so in the case).

Citing the case of Fung Chun Man v Hospital Authority HCPI 1113/2006, The Honourable Mr. Justice Bharwaney summarized the Court’s position on the admissibility of expert evidence, that it must firstly be in a recognized discipline, reasonably required to enable the Court to resolve the issues in dispute, and proportionate. Therefore, although the explanations on the cause(s) of the Accident in the Expert Report were considered implausible by the Master, potential implausibility did not provide the basis for refusal to grant leave to adduce the Expert Report. At the end of the day, it is the trial judge who would decide whether to accept the expert evidence.

Secondly, in medical negligence cases and some complex industrial accident cases, single expert report can be adduced without leave. Thirdly, since joint expert reports could deprive parties of private consultation with experts, in his earlier case of Tang Tak Ping v Kai Shing Construction Co HCPI 539/2011, he ruled that only in exceptional cases would there be joint liability expert report. But in this case, the learned Judge reviewed himself and held that “a case need not be exceptional for a joint approach to be adopted. Likewise, a case need not be exceptional for a party to apply for leave of court before engaging his expert on liability.” Fourthly, he advocated early application for experts on liability in order to iron out matters on who that expert might be, what issues would be required for the expert to look into and whether separate experts are called for. 3

The Court was satisfied that this was a proper case to grant leave to the Plaintiff to adduce the Expert Report and the appeal was allowed.

Conclusion