LEE CHUN MUI v. SECURICOR GURKHA SERVICES LTD AND ANOTHER

                 HCPI 774/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 774 OF 2005

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D E C I S I O N

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1. This is an application by the 2^nd third party for an order that there be a separate trial of preliminary issues relating to the question of whether the 2^nd third party owed a duty of care to the plaintiff at common law or under the Occupiers Liability Ordinance Cap. 314 (‘OLO’).  I notice that if such an order were made, this would not dispose of all questions of liability between the 1^st third party and the 2^nd third party.  The application is made by summons dated 10 January 2007.  This is a matter of case management. 

2. The plaintiff’s claim in this action is for damages for personal injuries.  The plaintiff was injured in the course of her employment as a security officer with the 1^st defendant which provides security services.  At the material time the plaintiff was working at the Security Centre, 483, Castle Peak Road, New Territories (“the premises”). 

3. The premises were at the time undergoing renovation and construction works.  The 2^nd defendant was the principal contractor who was contracted to carry out such works. 

4. On 16 August 2003 in the course of her employment with the 1^st defendant, the plaintiff fell down a staircase (“the staircase”) in the premises.  The plaintiff’s case is that she was descending from the top rung of the staircase.  As she was stepping on the third or fourth rung from the top, she slipped and fell because the rungs and floors of the staircase were rough and uneven and the handrails were demolished.  As a result she sustained personal injuries.  The staircase was also undergoing renovation works at that time. 

5. The plaintiff claims against the 1^st defendant as the employer for damages for negligence and breach of duty.  There is also a claim for breach of duty under the OLO.  The plaintiff claims against the 2^nd defendant for breach of duty under the OLO. 

6. The 2^nd defendant joined the 1^st third party by a third party notice.  The 1^st third party owns the premises and is an associated company of the 1^st defendant.  By the third party notice the 2^nd defendant claims contribution and indemnity. 

7. The 1^st defendant joined the 2^nd third party by a third party notice claiming contribution and indemnity.  The 2^nd third party are the architects for the renovation and construction works.

8. This application is opposed by the plaintiff and the 1^st defendant. 

9. The principles governing whether a split trial should be ordered or not is well settled and is contained in the Hong Kong Civil Procedure 2007 at paragraphs 34/4/9 and 34/4/9A.  The general rule is that all the issues in a case are to be tried at the same time.  Only if it was just and convenient should there be a departure from the general rule.  An order for separate trial should only be made in exceptional circumstances on special grounds.

10. It is also clear that where the issues of fact are interwoven with the legal issues raised it will be undesirable for the Court to split the legal and factual determination.  And it is also a principle that the order for the trial of a preliminary point of law should not be made where there are facts in dispute.

11. I have considered the submission of Mr Longley for the 2^nd third party in support of the application.  I am unable to accept, as submitted by him, that an examination of whether the 2^nd third party owed a duty of care to the plaintiff requires an analysis of quite discrete facts and circumstances. 

12. Mr. Chan, for the 1^st defendant, rightly pointed out that the 1^st defendant’s claim against the 2^nd third party is on the basis that the accident to the plaintiff was caused by the 2^nd third party in common law negligence as well as the breach of the common duty of care under the OLO. 

13. At paragraph 7–93 of Charlesworth & Percy on Negligence 11^th ed., it is stated :

“The duty to take care, when it is known that a person is present upon land and is likely to be injured unless care is taken, is by no means confined to those who own or occupy the land.  It is a duty which is owed by everybody about to do an act which will cause injury unless care is taken.”

14. And at paragraph 7–94, it is stated :

“The duty of a person who is neither the owner nor the occupier of land may in some cases be greater than that of the owner or occupier.  If he is doing something on the land which he knows or ought to know will be a source of danger to persons on or likely to come on the land and meddle with the subject of his activity, he is under a duty to take precautions to prevent damage.  Reasonable precautions will include such matters as giving warnings, guarding, fencing off or otherwise taking steps to preserve the safety of the persons who come on the premises.”

15. And at paragraph 7–96, there is contained the following quotation from Lord Denning in Miller v. South of Scotland Electricity Board [1958] S.C. (H.L.) 20 :

“We are concerned with the duty of care that is owed by a person doing work―or anything else―on land: and that duty is today best found by resort to the general principle enunciated by Lord Atkin in Donoghue v Stevenson.  Such a person―be he occupier, contractor, or anyone else―owes a duty to all persons who are so closely and directly affected by his work that he ought reasonably to have them in contemplation when he is directing his mind to the task.”

16. An architect also has a duty of care to a third party depending on the facts of the case.  The factual circumstances relating to the duty of care of the 2^nd third party are in dispute. 

17. The 1^st defendant says that the accident was caused by 2^nd defendant and the 2^nd third party because they knew of the state of the staircase.  The 1^st defendant also says that the 2^nd third party was also the occupier of the staircase.  This depends on whether on the facts of the case the 2^nd third party has sufficient control of the staircase so as to make it liable as an occupier.

18. It seems to me that the facts and circumstances that the Court would have to consider in arriving at whether or not there was a duty of care on the part of the 2^nd third party cannot be isolated and separated from the facts and circumstances in the main action.  The consideration of the question of whether the 2^nd third party owed a duty of care to the plaintiff is fact sensitive and cannot conveniently be separated from all the facts in dispute by the parties in the action. 

19. I have considered the other submissions made by Mr. Longley.  I am not persuaded that there will be a significant saving of time and costs if an order were made. 

20. In my judgment it is not just and convenient to make an order as sought. 

21. I would also observe that the plaintiff would also, if an order were made, be kept waiting to have his trial in the main action while the issue is determined at first instance with the possibility of an appeal.  That is not, in my view, acceptable and is wholly unjust and inconvenient to the plaintiff. 

22. Mr Longley submitted that as an alternative there should be a stay of the third party proceedings.  That is also not acceptable, in my view, as all the relevant facts would have to be gone into the main action and it would not be just and convenient to separate the matter in the manner sought. 

23. I dismiss the application.