CHAN YIN NA v. UNION MEDICAL CENTRE LTD.

HCPI 804/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NOS.804 AND 805 OF 2003

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(Consolidated by the Order of the Honourable Mr Justice Suffiad dated the 24^th day of January 2003)

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R U L I N G

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1. This is an application by the 2^nd defendant for a split trial in that the issue of liability be tried separately from the issue of quantum.

2. This application is not objected to and supported by the 1^st defendant but opposed by the plaintiff.

Background

3. The plaintiff suffered from Post Partum Depression (with a history of suicidal attempt and suicidal thoughts) and was admitted to the Union Hospital on 8 October 2000.  The Union Hospital was operated by the 1^st defendant.  The plaintiff was put under the care of the 2^nd defendant.

4. Whilst in the Union Hospital, the plaintiff was not prevented from leaving the ward on the morning of 10 October.  The plaintiff went down to the podium of the hospital and jumped down from there.  As a result, she suffered serious injuries and was rendered paraplegic.

5. She now claims against both the defendants on the basis of their negligence.

Principles for a split trial

6. There is no dispute between the parties that as a general rule all issues are to be tried at the same time unless it is “just and convenient” to do otherwise.  There must also be a clear demarcation between the issues of liability and the issue of quantum.

7. What is in dispute here is the application of that principle to the circumstances of this case.

The application for split trial

8. It is contended by the 2^nd defendant that there is here a clear demarcation between the issues of liability and quantum in the present case in that the issue of liability concerns the 2^nd defendant’s management of the plaintiff during her stay at the Union Hospital while the issue of quantum involves her injuries resulting from her attempted suicide, her recovery and her present physical and psychiatric condition.

9. The 2^nd defendant also relies on the fact that the issue of quantum will be very complicated and seriously disputed.  The claim is in excess of $25 million, the Statement of Damages consists of 33 pages and a number of experts from different fields will have to be involved.

10. It is also submitted that the condition of the plaintiff has not stabilized and might still improve with time since it was improving between 2003 and 2004.

11. Therefore it is submitted by the 2^nd defendant that a split trial will be just and convenient in this case in that :

(a)      substantial cost need not be incurred to obtain the many different expert reports until the position on liability is known;

(b)     if the plaintiff succeeds on liability chances are she will be able to seek interim payment even while the case on quantum is being prepared;

(c)     if the plaintiff fails to establish liability, the costs of obtaining experts report on the issue of damages need not be wasted; and

(d)     the case has already suffered much delay due to the way in which the plaintiff has been going about obtaining expert reports on quantum.

Opposition by the plaintiff

12. The plaintiff opposes the application for split trial for the following reasons :

(a)      The issues on liability and quantum somewhat overlap since both issues touch on the plaintiff’s psychiatric condition.

(b)     There will be much delay if a split trial is ordered.  It is estimated that the trial on liability will take about 7 to 8 days whereas a full trial (both on liability and quantum) is estimated to be about 12 days.  Even if a split trial is ordered, it is unlikely that the trial on liability will come on before mid-2007, and given that theoretically there could be an appeal on the determination of liability before the issue of quantum can be reached, and also a possible appeal on assessment, it may not be until 2009 before the plaintiff can see finality in her claim.

(c)     The plaintiff’s case is almost ready for trial, both liability and quantum.  Even if the defendants have not commissioned any of their expert reports on quantum as yet, there can be no good reason why between now and mid-2007, all parties cannot be ready for a full trial on liability and quantum.

(d)     In all the circumstances of this case, it is neither just nor convenient for there to be a split trial of liability from quantum.

Decision

13. It would appear that the submission of the defendants is really based on the fact that a split trial would save them having to incur substantial costs in obtaining the numerous medical reports needed to meet the plaintiff’s case on quantum.  That however is only one of the factors which I will have to consider in determining whether it is just and convenient to order a split trial here.

14. I am of the view that a more important consideration is the time element.

15. Even if a split trial is ordered, it is unlikely, given the fact that the trial on liability alone is estimated to be about 7 to 8 days that it can come on for trial before mid-2007.  That being the case, between now and the trial itself, there really is no good reason (apart from saving the costs of quantum reports) why the parties cannot prepare for a full-blown trial on both liability and quantum.

16. The advantage for such a course to be taken is that any appeal emanating therefrom will be likely to be disposed of by 2008 both in respect of liability and quantum once and for all.

17. As for whether or not there is a clear demarcation between the issues of liability and quantum, it is not clear at all to me that there is a clear demarcation because the plaintiff, when she was admitted into Union Hospital on 8 October 2000, was already suffering from a psychiatric condition of Post Partum Depression with suicidal ideation.  That being the case, it is not difficult to visualize that there could well be an overlap in the evidence dealing with her psychiatric condition relating to both the issues of liability and quantum.  That is a matter for the 2^nd defendant to satisfy me on since it is the 2^nd defendant’s application for a split trial.  I am not satisfied that there is such a clear demarcation.

18. In the circumstances, I cannot come to the conclusion that it will be “just and convenient” in this case to order a split trial and the 2^nd defendant’s application is accordingly refused.

Costs

19. There will be a costs order nisi that the 2^nd defendant pays the plaintiff the costs of the application for split trial in any event.  There will be no order as to costs in so far as the 1^st defendant is concerned seeing that the 1^st defendant in effect supported the application by the 2^nd defendant.

Further direction

20. Having now disposed of the application for split trial; the parties are to attend the Listing Clerk to fix a Pre-Trial Review before the PI judge to be heard within the next two months.