Lai Kwai Yung v. Leung Wing Chun and Another

HCPI 906/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. HCPI 906 of 2007

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Coram :  Before Master B Kwan in Chambers

Date of Hearing :  5 March 2008

Date of Handing Down :  12 March 2008

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R U L I N G

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1.The solicitor for the 1^st & 2^nd Defendants wished to have a Decision on whether there should be a split trial heard at the Check List Review on 5 March 2008.

2.It was agreed between the parties that the arguments would be heard at the Check List Review on 5 March 2008 informally, without filing and serving the usual Summons.  Arguments were heard that day.

Background

3.There was a road traffic accident on 1 June 2005.  A bus driven by the 1^st defendant ran down the plaintiff at a road junction.

4.The points made by the Defendants in support of a split trial

Ø        It was submitted that in the circumstances of this case, there is a clear line between liability and quantum.

Ø        The 1^st defendant had the traffic light in his favour.

Ø        The plaintiff suddenly stepped out in front of the bus.

Ø        The plaintiff was wholly in the wrong.

Ø        The police issued a warning letter to the plaintiff as a result of her jaywalking.

Ø        The one and only decision for the Trial judge to make is whether the 1^st defendant can be found to have been negligent in the circumstances.

Ø        The plaintiff has obtained expert medical reports from no less than 4 disciplines: orthopaedic, neurological, ophthalmic and psychological experts.

Ø        The 1^st & 2^nd defendants have not obtained any expert medical reports so far.  It is therefore just and convenient to order a split trial, as the defendants would save the costs of expert medical reports if they succeed.  

5.The points made by the plaintiff against a split trial

Ø        The issue of contributory negligence of the driver and the pedestrian cannot be discounted.

Ø        On the facts, it will be highly unlikely that the driver can escape liability altogether.

Ø        It is settled law that in general, issues of liability and quantum should be heard together, see Cano-Shearer and Ors v Cathay Pacific Airways Ltd [2002] HKEC 1442.

Ø        It is trite law that just because there is a green light in his favour, a driver is not absolved of his duty of care to other road users, see Au Cheung v Choi Lai Fan [1979] HKLR 543.

The applicable law

6.The Defendants’ solicitor did not refer to any authorities, and he did not argue against the 2 authorities cited by the plaintiff.  In the Cano-Shearer case, it was said at paragraph that:

“(i)       generally, all issues are to be tried together at the same time unless it is "just and convenient" to do otherwise (Coenen v. Payne & Anr. [1974] 1 WLR 984, Wincheer Investments Ltd. & Ors. v. Lobley Co. Ltd. & Anr. HCA No. 8145 of 1992, unreported, decision of Findlay J. on 23 February 1995), and the burden is on the party seeking such departure to show it is just and convenient (Telford Development Ltd. v. Shui On Construction Co. Ltd. [1990] 2 HKC 110);

(ii)       "just" means fair to both sides, without one side or the other gaining an undue advantage by a separation, and "convenient" means convenient to both sides and advantageous from the point of view of costs (Wincheer Investments v. Lobley Co. Ltd., ibid.); and

(iii)       separate trials of liability and quantum should only be ordered in exceptional circumstances where there is a clear line of demarcation between those issues (Polskie Towarzystwo etc. v. Electric Furnace Co. Ltd. [1956] 1 WLR 562, Edward Martin Williams v. The Hong Kong Land Property Company Limited and Anor., HCPI No. 522/2001, unreported, decision of Deputy High Court Judge Muttrie on 12 April 2002).”

7.In the Au Cheung case the Court of Appeal held (inter alia) that:

1.        A green light is permission to a driver to drive beyond a certain point, it does not entitle him to lower his standard of care.

2.        The significance of the presence of a studded area is that it amounts to an invitation to pedestrians to cross there with due regard to the dangers of motor traffic.  It also serves as a warning to motorists that pedestrians are more likely to be found in that area than they would on unmarked parts f the road so that a higher degree of care is required from them when approaching such areas.

8.The burden is on the defendant to show that this case warrants a departure from the general rule that the issues of liability and damages should be tried together, and that it is “just and convenient” to order a split trial.

9.I take into consideration the fact that if a split trial is ordered, and if the defendants succeed on liability, the defendants would have saved the costs of obtaining orthopaedic, neurological, ophthalmic and psychological reports.

10.In the circumstances, it will only be “just and convenient” to order a split trial if the defendant is able to show that there is no possibility the Trial Judge will make a finding of contributory negligence against the bus driver.  If there is a possibility that the Court may make a finding of contributory negligence against the bus driver, no matter how small that possibility may be, then there should not be an order for a split trial, as no costs will be saved.  And if the expert medical reports are obtained after a finding of contributory negligence on the part of the driver, the overall length of this action would be much longer than if the usual directions had been given at this time.

11.I find that in the particular circumstances of this case, whether a finding of contributory negligence can be completely eliminated is not something that can be predicted before hearing and testing the evidence of the plaintiff and the bus driver at Trial.  The issue of contributory negligence cannot be decided by merely reading the contents of the witness statements that had been given to the police.  I certainly am not able to hold, (a) on the basis of those statements given to the police; and (b) on the basis that the plaintiff had been issued a warning letter by the police that “the plaintiff is wholly in the wrong”, as submitted by Mr Cheung.

12.Therefore I find that the defendants have not shown that it is “just and convenient” to order a split trial.  The application for a split trial is dismissed.  I will hear the parties on the question of costs of that failed application at the adjourned Check List Review.

13.The solicitors for the plaintiff shall fix the date for the Check List Review with the Listing Clerk within 14 days of the handing down of this Ruling.

Mr S Yiu of the Legal Aid Department for the plaintiff

Mr K Cheung of Messrs Waller Ma & Yeung for both defendants