LUK FUNG YEE v. CATHAY PACIFIC AIRWAYS LTD AND OTHERS

HCPI 69/2017 & HCPI 93/2018

[2020] HKCFI 880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 69 OF 2017

AND

PERSONAL INJURIES ACTION NO 93 OF 2018

________________________

________________________

________________________

DECISION

________________________

1.  Originally, the 5^th checklist review hearing of these proceedings (“the 5^th CLR”) was fixed on 7 April 2020. Due to the General Adjourned Period, the 5^th CLR did not take place as scheduled. Having considered the questionnaires and the written submissions provided by the parties concerning the 5^th CLR, I am of the view that the major controversy among the parties regarding the future conduct of these proceedings is whether there should be a split trial of the liability and the quantum in these cases.

2.  On 9 April 2020, I directed that any application for a split trial should be taken out on or before 17 April 2020.  On 15 April 2020, the 3^rd defendant (“D3”) wrote to this court and asked for an extension of time.  On 16 April 2020, I extended the time for any party to take out an application for a split trial to 24 April 2020.

3.  On 24 April 2020, D3 took out a summons (“the summons”), seeking the following orders:

(1)  the issue of liability of the defendants (“Ds”) in respect of the accident (“the Accident”) as defined in the Consolidated Statement of Claim (“CSOC”) giving rise to the plaintiff (“P”)’s claim be tried prior to and apart from the issues of:

(a) quantum claimed by P against Ds; and

(b) for the avoidance of doubt, causation of P’s claimed damages for which Ds are held liable;

(2)  Ds’ contribution proceedings be tried at the same time as the trial of liability of P’s claim; and

(3)  costs of the summons be to D3.

4.  The summons is opposed by P.  The 1^st defendant (“D1”), the 2^nd defendant (“D2”) and the 5^th defendant (“D5”) have indicated that they take a neutral stance.  The 4^th defendant (“D4”) has not indicated its position[1].  All these defendants have not participated in this application.

5.  The question raised by the summons is a case management matter.  I have directed the summons be determined on paper without an oral hearing.  Both D3 and P have provided me written submissions, and I have considered the same.

Background

6.  I would first briefly set out the background facts.

7.  On 19 December 2014, P suffered from cerebral venous and dural sinus thrombosis (“CVDST”) (being a type of stroke) whilst travelling in Singapore.  After receiving some treatment in Singapore, she was arranged to be transferred back to Hong Kong by way of a medical repatriation service (“the Repatriation Service”).

8.  The Repatriation Service took place on 24 January 2015.  However, in the course of the Repatriation Service, while P was being transferred by a medical stretcher in the boarding of an aircraft (“the Aircraft”), P was accidentally dropped onto the floor of the Aircraft.  This is the Accident pleaded in the CSOC.

9.  By these consolidated actions, P claims against D1 to D5 for the personal injuries she sustained as a result of the Accident. The roles of D1 to D5 in the Repatriation Service, and P’s causes of action against each of them are as follows:-

(1)  D1 was the carrier of the Aircraft.  P’s claims against D1 are based on (a) the Montreal Convention; (b) occupier’s liability; (c) negligence; (d) breach of non-delegable duty of care; and (e) vicarious liability.

(2)  D2 was P’s insurer who provided the Repatriation Service pursuant to its insurance contract with P (“the Insurance Contract”). P’s claims against D2 are based on (a) breach of the implied terms under the Insurance Contract; (b) negligence; (c) breach of non-delegable duty of care; and (d) vicarious liability.

(3)  D3 was subcontracted by D2 to organise, manage and supervise the Repatriation Service.  P’s claims against D3 are based on (a) negligence; (b) breach of non-delegable duty of care; and (c) vicarious liability.

(4)  D4 was further subcontracted by D3 to provide the ambulance and stretcher transfer P in Singapore.  P’s claims against D4 are based on (a) negligence; and (b) vicarious liability.

(5)  D5 was the ground handling agent of D1 in respect of the boarding of the Aircraft.  P’s claims against D5 are based on (a) negligence; and (n) vicarious liability.

10.  D3 first indicated its intention to apply for a split trial by way of its questionnaire dated 24 March 2020.

The principles

11.  The principles concerning split trials have been recently summarised by Bharwaney J in Shing Ho Wa v Really Super Ltd & Anor[2]:-

(1)  The starting point is that all issues in a case are to be tried at one and the same time.  There is a good basis for this, as split trials often result in delays, particularly if there is an appeal from the determination of the preliminary trial, and duplication of costs[3].

(2)  A departure from this general rule may occur in cases where it is just and convenient, efficient and proportionate to order a split trial.  Just and convenient means not only just and convenient to the parties, but also to the court, for the fair and efficient determination of all the contested issues[4].  It is for the party who seeks such a departure to demonstrate that it is indeed just and convenient[5].

(3)  The various, often competing, considerations that the court should take into account include[6]:-

“11. …

(1) whether the prospective advantage of saving the costs of an investigation of quantum if liability is not established outweighs the likelihood of increased aggregate costs if liability is established and a further trial is necessary;

(2) what are likely to be the advantages and disadvantages in terms of trial preparation and management;

(3) whether a split trial will impose unnecessary inconvenience and strain on witnesses who may be required in both trials;

(4) whether a single trial to deal with both liability and quantum will lead to excessive complexity and diffusion of issues, or place an undue burden on the judge hearing the case;

(5) whether a split may cause particular prejudice to one or other of the parties (for example by delaying any ultimate award of compensation or damages);

(6) whether there are difficulties of defining an appropriate split or whether a clean split is possible;

(7) what weight is to be given to the risk of duplication, delay and the disadvantages of bifurcated appellate process; and

(8) generally, what is perceived to offer the best course to ensure that the whole matter is adjudicated as fairly, quickly and efficiently as possible.

12. … other facts to be considered, as guided by the UK equivalent of O.1A r.4, include:

(a) whether a split trial would assist or discourage mediation and/or settlement; and

(b)  whether an order for a split late in the day after expenditure of time and costs might actually increase costs.”

(4)  All of the abovementioned factors are potentially relevant, and have to be taken into account in what is essentially a pragmatic balancing exercise in assessing how the case, which has to be assessed by reference to its own facts, features and peculiarities, is likely to unfold if a split trial is ordered and if a split trial is not ordered[7].

(5)  In Electrical Waste Recycling Group Ltd & Anor v Philips Electronics UK Ltd (Rev 1)[8], it was also held that:-

“9. … experience has confirmed the importance of ensuring that there be careful demarcation, in the event of an order for a split trial, of the boundary between the two in terms of the issues to be deal [sic] with at each stage…

13. In particular, I am not persuaded that the separation of causation from liability is realistic in a case (such as this) where, at least arguably, the evidence required to consider quantum is likely to overlap with the factual evidence in relation to liability, and where (as I understand from the Defendants may be true in this case) some of the same witnesses in the first part may have to be involved in the second part.

14.  … I do not think I need to decide in respect of each separate category which of the parties is right. In some categories … there may well be less overlap that [sic] the Defendants maintain; in others … it seems to me that overlap on the issue of causation is likely.  Suffice it to say, that a split seems to me to be unlikely to be neat, and may well lead to argument which in turn is expensive in time and money.”

12.  In accordance with these principles, the burden is on D3 to show that it is just and convenient for a split trial to be ordered.

13.  D3 has put forward the following grounds in support of its application for a split trial:

(1)  there is a clear demarcation of issues of liability and quantum;

(2)  a split trial would save time and costs;

(3)  complexity of the issues;

(4)  a split trial would facilitate settlement;

(5)  a split trial could allay potential financial hardships suffered by P at an earlier time; and

(6)  a split trial is the best course to adjudicate the matter as fairly, quickly and efficiently as possible.

14.  D3 also denies that there is any delay on its part in taking out the application for a split trial.

15.  I would examine these grounds and the delay issue in turn in the paragraphs below.

Ground 1

16.  D3 submits that there is a clear demarcation of issues of liability and quantum.  With respect, I am unable to agree.  As submitted by counsel for P, I am of view that the issues of liability and quantum in these proceedings are intertwined and they overlap and interact upon each other.  The intertwining relationship between the liability issue and the quantum issue are highlighted by the following matters:

(1)  the question of causation; and

(2)  the evidence of P’s co-habiting partner, Mr Fung Bai Chuan Bertrand (“Mr Fung”).

17.  As to causation, I am of the view that the question of causation clearly goes to both liability and quantum, and it would not be possible to determine the liability issue without considering the question of causation.

18.  It is not in dispute that a little more than a month before the Accident, P suffered from CVDST which caused injuries and disabilities to her.  By the time of the Accident, P was still receiving treatments for CVDST, and she was expected to continue such treatment after her repatriation back to Hong Kong.  P’s pleaded case is that (a) as a result of the Accident, P suffered serious personal injuries, disabilities, loss and damage; and (b) but for the Accident, P ought to have fully recovered from CVDST or alternatively recovered with only a slight disability[9].  However, in Ds’ respective Defences, the same is denied by D1 and D3 and not admitted by D2 and D5.

19.  In the circumstances, a controversial issue in these proceedings is whether the injuries and disabilities suffered by P were caused by (a) the CVDST alone (hence, not by the Accident at all); (b) the Accident alone; or (c) a combination of both.

20.  It is trite that an action for negligence or breach of duty of care only becomes actionable if accompanied by proof of actual damage.  The claimant must show that damage resulted from the defendant’s negligence, because negligence without proof of damage is not actionable[10].

21.  In order to prove her pleaded case, P would have to adduce evidence at the trial on liability to prove that the Accident caused or contributed to P’s injuries and disabilities, so as to complete her cause of action.

22.  In D3’s reply submissions, D3 submits that it is not any of the Ds’ cases that the Accident did not cause any damage to P at all, but rather that Ds are not at fault for the Accident.  D3 says that in all of the Ds’ Answers (“the Answers”) to the Consolidated Revised Statement of Damages (“CRSOD”), it is pleaded that the Accident is responsible for a positive sum of damages, and therefore proof of causation is not required at the trial on liability stage for the purposes of completing P’s alleged cause of action.  I am unable to accept these submissions.  The statement of damages and the answers to the statement of damages are dealing with the quantum issue, ie if Ds are liable to P, what should be the quantum of the damages.  The liability issue is death with by the statement of claim and the defence of each defendant.  On the pleadings concerning liability, I agree with P’s analysis as set out in [18] above.

23.  Further, even if D3 now adopts a position that the Accident did cause damage to P, this would not be the position of other Ds.  As shown in the defences of other Ds, as to whether the Accident caused any damage to P, the issue is in dispute.

24.  Accordingly, it would be necessary for the parties’ respective neurologists to give evidence on the 2 separate but related questions, namely: (a) whether Accident caused or at least materially contributed to P’s injuries and disabilities (which goes to liability); and (b) the extent of P’s injuries and disabilities that is attributable to the Accident (which goes to quantum).  If there were to be a split trial, not only would the neurologists be required to attend in both parts of the trial, it would also be unrealistic to forcibly divorce these 2 questions, by having one answered at the trial on liability, and restricting the other to be answered only at the trial on quantum.

25.  As to Mr Fung’s evidence, I agree with counsel for P that his evidence is related to both the liability issue and the quantum issue in these proceedings.

(1)  There is no dispute that Mr Fung’s evidence is relevant to the issue of quantum.

(2)  Mr Fung, being P’s sole factual witness, would also give evidence on liability.  His evidence would be relevant to (a) the implied terms under Insurance Contract; (b) the non-delegable duties of D1, D2 and D3; and (c) context to the matters surrounding the Accident.

(3)  Implied terms under the Insurance Contract – One of P’s causes of action against D2 is breach of the implied terms under the Insurance Contract to, inter alia, provide the Repatriation Service with reasonable care and skill.  According to P, such implied terms arose (a) in order to give business efficacy to the Insurance Contract; (b) as a matter of obvious inference from the Insurance Contract; and (c) by operation of section 5 of the Supply of Services (Implied Terms) Ordinance.  P’s pleas in this regard are not admitted.  Mr Fung’s evidence on how D2 was engaged under the Insurance Contract to provide the Repatriation Service would therefore be relevant to the determination of the issues relating to implied terms.

(4)  Non-delegable duties – As against D1, D2 and D3, P also relies on the cause of action of breach of non-delegable duties.  Such pleas are denied by D1, D2 and D3.

(a)  In Woodland v Swimming Teachers Association and others[11], Lord Sumption identified the following 5 factors in establishing a duty of this kind: (i) the vulnerability of the claimant; (ii) the existence of a relationship between the claimant and the defendant by virtue of which the defendant had a degree of protective custody and control over the claimant; (iii) the claimant having no control over how the defendant chose to perform its obligation; (iv) the delegation of that custody and control to another person; and (v) negligence by that person in the performance of the very function assumed by the defendant and delegated to him or her[12].

(b)  Mr Fung’s evidence as to how the Repatriation Service was arranged, and how P was transported by the personnel involved in the Repatriation Service would be of relevance in determining whether the factors as identified in Woodland (in particular, factors (i), (ii) and (iii)) would be satisfied.

(5)  Context of the Accident – There is no dispute that Mr Fung did not witness the Accident as it took place.  However, Mr Fung was present with P both before and after the Accident.  His evidence would therefore be useful in providing the necessary context and bridging the narrative provided by the various contemporaneous and post-Accident reports and other documents relied on by P, which would otherwise be isolated accounts from different parties given from their respective points of view.

Ground 2

26.  D3 submits that a split trial has the potential to save significant time and costs.

(1)  Having a split trial would allow the parties to focus on the liability issue first.  If P fails to establish liability or only succeed on the liability issue to a limited extent, the need to establish quantum may be dispensed with altogether or be greatly limited.

(2)  The estimated time spent on the liability issue is about 20 days and the estimated length of the time spent on the quantum issue would be about 9 days.  Having the liability issue to be tried and determined first would have the potential of saving significant costs.

(3)  In the event that P only establish her claim against some but not all the defendants, those successful defendants would be able save significant costs.

27.  D3 at most can only say that a split trial may have the effect of saving time and costs.  It has to be borne in mind that P is claiming against all the 5 Ds, and the Ds are also making claims against each other for indemnity and/or contribution.  In the circumstances, success by P as against any one of Ds would likely necessitate a trial on quantum, possibly involving multiple parties.  The potential benefit suggested by D3 would only materialize if all Ds succeed in defending the liability claimed by P.

28.  As said in the above, I am of the view that the liability issue and the quantum issue intertwine with each other.  Unless all the defendants succeed on the liability issue, having a split trial in these circumstances would in fact increase and not reduce time and costs, for Mr Fung and the parties’ respective neurologists would have to come to the court to give evidence twice.

29.  Further, if there be a split trial, the unsuccessful defendant(s) in the trial on liability may appeal to the Court of Appeal and possibly even beyond.  In these circumstances, the trial on quantum would be delayed for a long time.  In my view, this is a strong factor against the split trial application made by D3.

30.  I do not agree that Ground 2 is a sufficient ground justifying the split trial sought by D3.

Ground 3

31.  D3 submits that there are a multitude of complex issues in P’s claim against Ds, not to mention the 4 sets of contribution proceedings issued by D1, D2, D3 and D5 against the other co-defendants.  In these circumstances, a split trial would ease the burden on the trial judge as well as counsel and the parties.

32.  It is true that issues with complexity have to be resolved in these proceedings.  However, from time to time, that are cases with complexity being tried in the High Court.  Complexity itself, without anything more, cannot justify a split trial.

33.  As said in the above, there is no clear demarcation between the liability issue and the quantum issue.  Further, there may be a long delay to the trial on quantum if any unsuccessful defendant in the trial on liability takes the matter to the Court of Appeal or even beyond. All these factors are strongly against the split trial proposed by D3.

Ground 4

34.  D3 submits that the contribution proceedings add a layer of difficulty to settlement, as a settlement between P and one or more (but not all) Ds would not be final, given that those Ds choosing to settle would remain as defendants in the contribution proceedings.  Therefore, unless the parties are able to focus their minds on liability and apportionment between Ds, rather than quantum, a settlement would be unlikely. Further, the passage of additional time between the trial on liability and trial on quantum would allow the injuries to settle, and more readily facilitate a settlement since parties would have a more accurate assessment of P’s damages.

35.  With respect, I am unable to agree.

(1)  Save and except D4, all the parties in these proceedings are represented by experienced solicitors and counsel.  The parties can certainly have without-prejudice discussions or to have a mediation at any time to explore the possibility of having a settlement.  It would certainly be ideal to have a settlement agreement settling all the issues in these proceedings, not only the quantum issue.  With the benefit of being represented by experienced lawyers, different scenarios can be thoroughly canvassed in those without-prejudice discussions.  The trial in these proceedings will not take place in the near future.  The parties still have sufficient time to conduct those discussions.  I do not see how a split trial would speed up or facilitate any settlement discussion.

(2)  As said before, the trial will not take place in the near future.  The parties may continue to observe the injuries suffered by P and reassess the situation at any time.

(3)  The purpose of resolving all the issues in these proceedings in one go is to give a final answer to all the parties as soon as practicable.  The time gap between the trial on liability and the trial on quantum (which would be prolonged if there is any appeal after the trial on liability) would mean delaying the time in giving a final determination in these proceedings.  That would not be fair to any party in these proceedings.

Ground 5

36.  D3 submits that the proposed split trial could allay potential financial hardship suffered by P at an earlier time.  In D3’s submissions, with a split trial, the liability issue can be heard and determined at an earlier time.  Once liability is crystallised by a judgment on liability for damages to be assessed, P will be afforded a ground for interim payments.  This would help in alleviating the financial hardships suffered by P’s family.  D3 has no objection to set down the trial on liability and the trial on quantum at the same time, and two separate periods would be reserved for the two parts of the trial at once.  There would be no delay in an ultimate award of compensation or damages once dates for the trial on quantum are locked in.  The trial on quantum can then be vacated if all Ds are successful, or shortened if one or more but not all Ds are successful.

37.  With respect, the flaws in these submissions are ignoring the potential delay caused by an appeal against the judgment on liability lodged by any Ds after the trial on liability but before the trial on quantum.  The trial on quantum may have to be adjourned for a significant period of time due to the appeal.  Further, given the causation issue is to be resolved in the second part of the trial in D3’s proposal, P may not be able to obtain any interim payments (if any) after having success in the first part of the trial, for the causation issue is still unresolved.

Ground 6

38.  D3 submits that the proposed split trial is the best course to adjudicate the matter as fairly, quickly and efficiently as possible.  D3 argues that the ability to hear the trial on liability much sooner will allow the court to try the issue of liability at an earlier time, with evidence and memories intact.  Further, it would be fair to Ds for they do not need to be unnecessarily dragged into an inquiry as to damages if they succeed in the trial on liability, particularly when the recoverability of any successful D’s costs is in serious doubt.  As long as at least one of the Ds is successful, the split trial will translate into real time and cost savings for all parties, as the time which would have been spent on examining that D’s witnesses and for that D to examine the other parties’ witnesses at trial would be saved, and the time and costs savings in relation to preparing for the same would also be saved.  P and the unsuccessful Ds would also benefit from a simplification of the issues if one or more of the other Ds are found not to be liable.

39.  I am not persuaded by these submissions.  As said in the above, I am of the view that the liability issue and the quantum issue intertwine with each other and it would not be realistic and desirable to have a split trial as proposed by D3.  All the witness statements and expert reports have already been prepared, and these documents would assist in preserving the memories.  Further, given the contribution proceedings among Ds, unless all Ds are entirely successful in defending P’s claim on liability, the participation of all Ds in the trial on quantum is inevitable.  Moreover, the potential delay caused by an appeal against the judgment on liability is a significant drawback in D3’s proposed split trial, and this has to be borne in mind.

Delay by D3

40.  P submits that there has been inordinate delay by D3 in taking out this application for a split trial.  D3 only first indicated its intention to apply for a split trial shortly before the 5^th CLR, by way of its Questionnaire dated 24 March 2020.  By then, the parties have already:

(1)  filed and served all consolidated pleadings, with close of pleadings taking place on 28 December 2018;

(2)  exchanged witness statements on 7 August 2019;

(3)  prepared all reports and supplemental reports of their experts, including all the joint reports; and

(4)  filed and served P’s Consolidated Revised Statement of Damages on 27 December 2019, and Ds’ respective Answers thereto on 13 March 2020.

41.  P submits that P has been preparing these proceedings for a trial on both liability and quantum at all times, and P has already incurred substantial time and costs to do so.  It would be unfair to P if the belated application for a split trial made by D3 is allowed.

42.  The explanation offered by D3 on the delay point is that D3 was only made aware for the first time that length of the trial was estimated to be 29 days, with the number of days estimated for examining the witnesses on quantum alone being 9 days, when parties exchanged their respective certificates of time estimates in late March 2020.  Furthermore, as Ds only filed their respective Answers on 13 March 2020, D3’s counsel could only provide his advice on merits, quantum and further interlocutory applications to be taken out after such date.

43.  With respect, I am not satisfied that the explanation offered by D3 is a reasonable explanation concerning the delay.  As submitted by counsel for P, as early as when the pleadings were closed (ie on 28 December 2018), D3 ought to have appreciated the issues in dispute in relation to both liability and quantum and any complexity involved.  In fact, from the Joint Medical Report of the parties’ experts dated 26 August 2016 (prepared before commencement of the present actions), it was already clear that there would be issues of apportionment and causation in the present proceedings. Further, from the consolidated statement of damages dated 14 June 2018 (in which all but one of the heads of damages eventually claimed in the CRSOD have already been pleaded), D3 should have been fully aware of any complexity that could arise from the issues on quantum.

Disposition

44.  For the reasons above, I am of the view that none of the grounds put forward by D3 can sufficiently justify the proposed split trial.  I am also of the view that there is inordinate delay in taking out the application for a split trial.  In view of all these, the summons must be dismissed. 

45.  I dismiss the summons.  All the issues in these proceedings should be resolved in the trial in one go.

46.  The application made by D3 in the summons is a battle between D3 and P.  All the other Ds either have expressly adopted a neutral stance or remain silent, and all of them have not taken part in this application.  In these circumstances, I am of the view that costs of the summons should be paid by D3 to P.  I make a costs order nisi that costs of the summons be paid by D3 to P forthwith, and those costs be summarily assessed. There be leave to P to file and serve a bill of costs for summary assessment within 7 days after the costs order becoming absolute, and there be leave to D3 to file and serve a written reply to the said bill within 7 days thereafter.

47.  Having determined the issue of split trial raised by D3, it is now time for the court to give directions on the further conduct of these proceedings.  The parties shall discuss and see whether they can have an agreement and jointly propose some directions to the court for consideration and approval.  I direct that within 7 days from the date of this decision:

(1)  the parties do jointly provide the agreed proposed directions to the court; and

(2)  in the absence of an agreement among the parties, each party shall provide her or its own proposed directions and the reasons in support of the proposal to the court.

After considering the proposal(s) made by the parties, I would give the necessary directions on paper.

48.  Lastly, it remains for me to thank the parties for the assistance rendered to the court.