XCHRX DR. LEUNG KAI YUEN JOSIAH AND OTHERS v. RYODEN LIFT AND ESCALATOR CO. LTD. AND OTHERS

HCA 7987/97, 9571/97 & 13109/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7987, 9571 & 13109 OF 1997

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R U L I N G

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1. I have already ordered that there be a split trial on issues of liability and quantum of damages in the actions that Mr. Bleach S.C. appears for the plaintiffs.

2. The application before me now is to order the trial of a preliminary issue on the question of liability in those actions as well as in all the actions that are before me today. It is said that the issue as to the cause of the fire and the seat of the fire i.e. the actual place where it started should be tried as a preliminary issue. The other parties all agree to this course and they have all submitted that this is a cost-saving way to deal with the actions and to make it more manageable. It is submitted that after the trial of the preliminary issue the court should then determine the other issues on liability namely, the issues as to the spread of the fire with the resulting loss and damage to the plaintiffs and issues of apportionment of blame as there have been allegations of contributory negligence made on the pleadings.

3. The case for the plaintiffs for whom Mr. Bleach acts is that welding debris generated by welding work was carried out by employees of the 3rd defendant in lift shaft no. 3 on the 15th floor which fell down the lift shaft no. 3 and came into contact with combustible debris accumulated at the bottom of the lift shaft causing it to ignite and/or bounced or ricocheted into the hoarded area surrounding lift shafts nos. 3 and 4 on the 2nd floor causing combustible debris accumulated there to ignite. The fire then spread rapidly from the 2nd floor to the other floors mainly through the open lift shafts in the building, resulting in significant loss of life and damage to property.

4. It is also said by Mr. Bleach that the issue on the cause and seat of the fire would also include the issue as to the vertical spread of the fire up the open lift shafts but not the horizontal spread of the fire into the various floors which would be covered by subsequent issues to be determined namely, on the spread of the fire.

5. The general rule is that all the issues in the case are to be tried at the same time. There is power to order that different issues in a case be tried at different times. However, that departure from the general rule is ordered only if it is just and convenient. And it is, of course, for the party who seeks such a departure to demonstrate that it is indeed just and convenient. (Telford Development Limited and Shui On Construction Limited 1992 HKC 110)

6. It is also stated in the marginal note 33/4/9 of the Hong Kong Civil Procedure 2002 that :

"An order for the separate trial of separate issues is a departure from the beneficial object of the law that all the disputes should be tried together and therefore generally speaking such an order should only be made in exceptional circumstances or on special grounds."

7. It was submitted that the trial of the preliminary issue would last between 4 and 6 weeks whereas a trial of all the issues on liability would last about 6 months with all parties taking part. On the preliminary issue certain parties have indicated that they would not take part and they agree to be bound by the result of the preliminary issue. It has also been submitted that once the preliminary issue has been decided one way or the other a large number of actions may well be compromised.

8. I am not persuaded that there will be a substantial saving of time and costs to split the trial up in the manner suggested. Whichever way the preliminary issue is decided that would not determine any of the actions on the question of liability. The issues of the spread of the fire and contributory negligence will still have to be determined. I cannot regard as persuasive the submission that the actions may be compromised as a result of the findings on the preliminary issue. There has already been a lengthy Commission of Inquiry a few years ago into the fire but that has not resulted in compromises of the disputes between the parties.

9. It seems to me that there are bound to be witnesses who will be giving evidence at the trial of the preliminary issue and who will have to return to give evidence at any subsequent trial on the issues on the spread of the fire and contributory negligence. These would be both lay witnesses and expert witnesses. It cannot be just and convenient for them to appear at separate trials on the issues of liability.

10. It also seems to me that whichever way the preliminary issue is decided it would not be determinative of any of the actions. There is also the strong possibility of an appeal to the Court of Appeal and a further appeal to the Court of Final Appeal on the findings on the trial of the preliminary issue. This would inevitably cause delay to the trial of the remaining issues on liability and is, in my view, an important matter to bear in mind.

11. I am also not persuaded that there will be a substantial saving of costs and court time in ordering the trial of the preliminary issue as applied for. I do, however, order a split trial of liability and quantum as it appears to me to be just and convenient to do so. I will hear the parties on the directions to be given bearing in mind that one should ensure a just, speedy and economical disposal of the issues of liability.