CHUNG KING HI v. WONG CHI LIT

HCPI 561/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 561 OF 2008

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D E C I S I O N

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1.  The Defendant took out a summons for split trial on liability and quantum. 

2.  The Plaintiff was a teenaged boy and he was hit by a car in a road traffic accident.  The Defendant was charged with dangerous driving, but was convicted of careless driving as well as speeding by the magistrate.  The accident took place in 2005, and the Defendant was convicted in 2006.   The quantum claimed is very substantial and close to $70 million. 

3.  The Defendant made the application on the following grounds:

(1)     Possible loss of memory by witnesses of the accident by reason of the longer time required in preparation for the trial on quantum;

(2)  Determination of liability and/or contributory negligence may induce settlement without a trial on quantum; and

(3)  Split trial does not necessarily involve more costs.

4.  The real issue on liability seems to be contributory negligence.  The Defendant alleges that the Plaintiff has crossed the road or completed the cross against pedestrian traffic signal. 

5.  The Defendant identified four civilian witnesses who had been interviewed by the police.  Two of them were called at the trail before the magistrate whereupon their evidence were accepted and the Defendant was convicted.  One of those two said she crossed the road when the pedestrian signal was flashing green and just when she completed the cross and the pedestrian light turned red, she heard a crash.  The Defendant was saying that there could be an inference that the Plaintiff rushed out onto the road against the traffic signal.

6.  I am not going to give any preliminary view on either liability or contributory negligence.  I am more concerned with whether there is any possibility of lapse of memory by reason of probably a longer preparation time because of the substantial damages involved.

7.  Mr Kwok, for the Plaintiff, indicated that he was only relying on the conviction and res ipsa loquitur, and did not intend to call any witness (or the police witnesses).  He submitted that if they were to be called by the Defendant, they would be against him as judging from the transcript of their evidence given in the Magistrate’s Court. 

8.  Be that as it may, any probability of loss of memory is speculative in that those witnesses have given statements to the police.  Further, the Defendant has taken no step to interview them or to take any further witnesses’ statement, which they can always do now.

9.  The possibility of settlement after the trial on liability is also speculative.  This is a case when quantum is substantial and I cannot see any settlement of it without the necessary expert reports being obtained.  Hence, there is no saving of costs.

10.  Complaint is made by Mr Kwok as to delay on the part of the Defendant in obtaining joint expert reports.  So far, joint orthopaedic and neurological expert reports have been obtained, and there is not envisaged to be any difficulty on these subjects.  Four more areas have been identified by the Plaintiff: occupational therapy, special education, speech therapy and also gastroenterology.  The Defendant did not agree to joint examination and report(s).

11.  The difficulty seems to arise from the fact that the Defendant has not made up his mind as to whether those reports are required.  Mr Kwok said the Defendant had indicated those reports were not required.  Ms Fung, for the Defendant, said that was not the position, but when asked whether that meant those reports should be required, she said that she would defer to senior counsel’s pending opinion which had been sought only a month’s ago.

12.  We must deal with the issue with relevance in mind.  If there are differences in whether certain expert evidence is required, then proper arguments be heard on that.  I cannot see how a split trial will help to resolve the problem of trial preparation on quantum.

13.  As to costs saving, Mr Kwok has set out the different scenarios (including possible appeal) of two sets of brief fees for split trial, and the case most probably will require senior counsel on each side.

14.  Ms Fung replied that if there were split trial, each of the briefs would no doubt be lower.  However, she failed to address what the costs would be globally.

15.  The relevant consideration are convenience, justice and costs. I had posed the questions to Ms Fung that in case of a split trial, whether it should put before the same tribunal at different times, and whether only junior counsel be briefed for liability and senior counsel for quantum, which might possibly lead to some saving of costs.  Unfortunately, this kind of practical consideration which is highly relevant in ordering a split trial has not been provided to me.

16.  With proper case management, I do not see that there should be much protected preparation for quantum.  In any case, I cannot see there will be any inducement to settlement without by simply having a ruling on liability without any preparation on quantum.

17.  In the premises, I rule against the Defendant.

18.  I direct the Defendant do indicate his position on the various areas of expert evidence proposed above (and also physiotherapy) within 8 weeks, whereupon the Plaintiff is to restore the Check List Review hearing for consideration, if any, of the outstanding joint examination and report(s).

19.  Upon hearing counsel for both parties, I order the Defendant do pay the costs of this application to the Plaintiff summarily assessed at $80,000.