HO PING LIN SUING BY HO WING SHAN HIS DAUGHTER AND NEXT FRIEND v. FAN WAI KWONG

HCPI 1166/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1166 OF 2015

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D E C I S I O N

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1.  This is the defendant’s application for a split trial on the issues of liability and quantum.

BACKGROUND

2.  This is a personal injury claim arising out of a road traffic accident at the junction between a minor and a main road on 2 November 2012.  The plaintiff, 61 years old at the time, was on a bicycle coming out of the minor road and the defendant was the driver of a motor car travelling on the main road.

3.  As a result of the accident, the plaintiff suffered serious head injury and required five emergency operations.  The plaintiff was unable to take care for himself and left with disabilities including double incontinence, severe global aphasia and severe apraxia of speech.  He also needed major assistance to walk and remained mainly wheelchair-bound.  The plaintiff also claims for psychological / emotional problems.

THE ISSUES IN QUESTION

4.  It is not in dispute that the plaintiff came out of a minor road which had two “Stop” signs as well as a double line.  The crash occurred at a point passed the double line and the plaintiff’s bike collided with the front of the left side of the defendant’s car.

5.  The defendant’s case, in short, was that he was driving along the main road within the speed limit and had actually slowed down approaching the junction when he saw pedestrians and cyclists stopping near the “Stop” sign of the minor road.  He alleged that the plaintiff riding his bike suddenly dashed out of the junction just 2 metres in front of his car.

6.  The defendant claimed that he immediately applied the brake and swerved a little to the right.  He managed to stop his car but the plaintiff was looking to his left and did not take heed of the car, and he crashed into the side of the defendant’s car.

7.  In contrast, the plaintiff’s case appeared rather general and non-specific: i.e. allegations against the defendant failing to keep proper care, attention or lookout or driving too fast etc.

8.  It is noteworthy that the defendant was not prosecuted after a police investigation.

LEGAL PRINCIPLES

9.  The legal principles is trite: the general rule is that all disputes should be tried together and an order for split trial should only be made in exceptional circumstances or on special grounds.  The legal test is whether it is “just and convenient” to all parties to order a split trial taking in all the circumstances of the case.

10.  Ms. Pauline Leung, Counsel for the plaintiff, admitted that the plaintiff would not be calling any witness on facts regarding liability, thus the plaintiff’s case would rely upon attacking the defence’s evidence by, for example, cross-examining the defendant.

11.  Ms. Leung argued that unless the court could conclude at this stage that there would not be any finding of contributory negligence at trial, there should not be an order for split trial.

12.  I disagree that this should be the test here.  The court is not conducting a mini-trial and I cannot see how a court can rule at an interlocutory stage that “there will not be any finding of contributory negligence at trial” before ordering a split trial.  If this is the legal test, then no order for split trial can ever be given.

13.  Looking at the circumstances of this case, I think the proper question here is “whether the defendant has a reasonable prospect, as oppose to a mere theoretical prospect, of a successful defence”.

14.  It is clear that the plaintiff has suffered serious injuries and may require multiple experts: neurosurgery, urology, psychiatry, “rehabilitation” or “future needs” expert etc.  The investigations and calculations of quantum would likely to be lengthy and costly.

15.  Thus, if the issue of liability can be determined earlier, it is clearly “just and convenient” to both parties because if the defence is successful, much costs can be saved.

16.  The downside of a split trial is the time delay.  However, as Mr. Victor Gidwani, counsel for the defendant, has submitted, the case is ready to be set down for trial on liability.  There is only one witness, the defendant. The time required for trial on liabilities should be no more than one or two days so there is a prospect of an early date for trial.

17.  Ms. Leung suggested the delay may be 6 months to a year for a split trial.  She submitted that the plaintiff’s condition was now stable and ready for experts’ examinations.

18.  Weighing the pros and cons, I think there are “just and convenient” reasons to consider a split trial under the circumstances.

19.  This brings me back to the question here: “whether the defendant has a reasonable prospect, as oppose to a mere theoretical prospect, of a successful defence”.

20.  The court is not conducting a mini-trial and appreciate that, due to circumstances of the case, the only witness will be the defendant.

21.  However, I note that in the photographs taken by the police and the sketch of the accident, the defendant’s car appeared to have stopped right across the junction (and not beyond the junction).  This may support that the defendant’s car was not travelling fast and lend some “objective” weight to the defendant’s case that, on seeing the plaintiff dashing out, he has managed to stop his car but the plaintiff failed to notice the car and effectively ran a “Stop” sign to collide with the side of the defendant’s then stationary car.

22.  As such, I do think that the defendant does have a reasonable prospect of a successful defence and, given all the circumstances, this is a case appropriate for a split trial.

ORDER

23.  I will give the following orders:

i) There be a split trial on issues of liability and quantum;

ii) Parties shall fix a date for a direction hearing at the earliest available date for directions to set down for trial on the issue of liability;

iii) The costs of and occasioned by this application be to the defendant with certificate to counsel.  If there is no agreement on costs, the defendant shall lodge and serve a summary bill of costs within 28 days of this order and the plaintiff shall lodge and serve a list of objections 28 days thereafter. The costs shall be summarily assessed on paper.