Wong Man Kin v Secretary for Justice
Court of First Instance
Personal Injuries Action No. 947 of 2013
Bharwaney J in Chambers
3 August 2017

Expert evidence – personal injuries claim – whether, given earlier consent order prohibiting expert evidence on liability, court had jurisdiction to grant leave – whether “sufficient cause” to vary or revoke previous order under O.38 r. 44 – Rules of the High Court (Cap. 4A, Sub. Leg.)

P sustained personal injuries in a traffic accident and brought an action against D1–2 alleging negligence in carrying out road works on the newly paved road concerned. The Master made a consent order that no expert evidence on liability was to be adduced (the “Consent Order”). Subsequently, the Personal Injuries Judge noticed a clear dispute on the facts and directed the parties to explain why expert evidence on the condition of the relevant road surface was not obtained. In response, P sought leave to adduce expert evidence including that of M, a chartered civil engineer specialising in road works. D objected, arguing that such evidence was unnecessary and in any event, by reason of the Consent Order, the Court did not have jurisdiction to grant the application.

Held, dismissing P’s application, that:

  • The expert opinion evidence obtained on the questions posed, such as whether D had followed proper procedures in carrying out the road works, was not required to assist the Court to determine those issues. These were matters of common sense and fact. It was clear that M was unable to say what the condition of the road was at or near the time of the accident on the available objective evidence and the Court would need to determine this issue from the evidence of P and other witnesses.
  • However, had the Court acceded to P’s application, it would have ruled in his favour on the jurisdiction point, invoking the power under O. 38, r.44 of the Rules of the High Court (Cap. 4A, Sub. Leg.), to review an earlier case management decision relating to expert evidence.
  • The critical factor, which was fact sensitive, was what constituted “sufficient cause” to revoke or vary the previous order made or direction given under O. 38, r. 44. Here, had M been able to provide an expert opinion on the condition of the road surface at the time of the accident, that would have been admissible and “sufficient cause” for the Court to invoke the rule to vary the Consent Order and to grant leave to the parties to adduce expert evidence on this issue.

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).