EDWARD MARTIN WILLIAMS v. THE HONG KONG LAND PROPERTY CO. LTD. AND ANOTHER

HCPI 522/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.522 OF 2001

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J U D G M E N T

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1. The plaintiff appeals against the order of Master Kwan ordering a split trial and awarding costs to the 1st defendant and seeks an order that the application for a split trial be adjourned. There is also a summons for the Interrogatories served by the plaintiff on the 1st defendant on 29 December 2001 to be withdrawn. I refused the appeal and will now give my reasons. I will also rule on the summons.

2. The 1st defendant is the owner and occupier of the Landmark building in Central. The 2nd defendant is employed by the 1st defendant to keep the Landmark clean. The plaintiff, a 55-year-old man, claims to have injured his back in a slip and fall accident outside the Landmark, on the pavement along Ice House Street, on 12 August 2000. He alleges that the 1st defendant negligently failed to clean a patch of grease on that part of the pavement which it occupied. The 1st defendant denies negligence and alleges contributory negligence. In addition it alleges that its obligations were discharged by reasonably appointing and monitoring the 2nd defendant, an internationally renowned and competent contractor.

Background to the Appeal

3. The plaintiff issued his Writ and Statement of Claim against the 1st defendant on 15 June 2001. On 27 July 2001, the 1st defendant filed its Defence averring that it acted reasonably and discharged its obligations by appointing the 2nd defendant as its cleaning contractor, giving particulars of the contract and the 2nd defendant's duties thereunder.

4. A Check List Review Hearing was set down for 1 November 2001. On 23 October 2001, the 1st defendant filed its Check List in which it sought an order for a split trial. The plaintiff's Check List stated that the pleadings would not require amendment; there was no indication that the cleaning contractor would be joined. The matter came before Master Kwan on 1 November 2001 and was adjourned to 29 November 2001. In the meantime correspondence passed between the parties' solicitors about the issue of the split trial. The 1st defendant's solicitors indicated, right up to 20 November, that they were as yet unable to form a view as to whether or not there should be a split trial, and then on 22 November told the plaintiff's solicitors that they now intended to join the 2nd defendant, and to seek adjournment the Check List Review Hearing meantime. The matter came before Master Kwan on 29 November 2001 and she ordered a split trial. The Notice of Appeal was filed on 13 December 2001 and the plaintiff on 29 December 2001 applied to join the 2nd defendant.

The Case on Liability

5. The plaintiff's case is that he when he slipped on a patch of oil or grease on an area of pavement outside the Landmark building, fell to the ground and suffered injury. The 1st defendant was the occupier and the 2nd defendant its independent cleaning contractor. They both owed the plaintiff the common duty of care to keep and maintain the area in a clean state and condition and free from hazards. They negligently failed in that duty and so cause the accident.

6. The 1st defendant admits that the plaintiff fell. It was the occupier; it had appointed the 2nd defendant as its independent cleaning contractor to clean the Landmark building and the pavements around it. It had in place a very thorough system for monitoring the 2nd defendant's work as well as for monitoring the areas to be cleaned and notifying the 2nd defendant when any ad hoc cleaning was needed. It had acted reasonably in entrusting the work to the 2nd defendant and had taken such steps as it reasonably ought in order to satisfy itself that the 1st defendant was competent and that the work had been properly done. In addition, it avers contributory negligence on the part of the plaintiff.

7. The 2nd defendant admits that it was employed by the 1st defendant as an independent cleaning contractor. It denies that the accident happened, or, if it did, that it happened at a place which the 2nd defendant was required to clean. It says that it carried out all the cleaning services required of it by its service agreement, particularly in respect of keeping the pavements round the Landmark clean. When its workers carried out this work on the day of the accident, there was no patch of oil or grease at the scene, or if there was, they cleaned it up. Further, they were never told by the 1st defendant's employees to clean up any such patch. In addition, the 2nd defendant avers contributory negligence on the part of the plaintiff.

The Case on Quantum

8. The plaintiff who is aged 55 says that as a result of the accident he suffered a massively extruded L3 disc of the lumbar spine with compression of L3-L4 nerve roots on the right. He underwent a laminectomy operation which kept him off work for some time. Though he is now able to work and has suffered no loss of earnings, he suffers considerable continuing disability. He claims damages for pain, suffering and loss of amenity of $650,000, and medical expenses of $284,023. In respect of future loss he claims $68,283,264. This is based on a multiplier of eight years, on a current monthly income of $711,284.

9. In fact the quantum will not be so great, because the plaintiff now advises that he has been offered an extension of his contract of employment until 14 October 2003. But his claim is still a large one and the issue of quantum will be complicated. In the first place, his own medical report shows that he suffered from a pre-existing back condition. In the second place, he is an Australian and a senior officer with the Standard Chartered Bank, on secondment to Hong Kong. He may not always remain in Hong Kong. There is an international element involved in that there will have to be discovery from his doctors and previous employers overseas, as well as from experts on his future earning capacity and entitlement to benefits here and abroad, as well as on his tax liabilities abroad.

The Law

10. The general rule is that all issues are to be tried at the same time unless it is "just and convenient" to do otherwise. See Telford Development Ltd v. Shui On Construction Ltd [1990] 2 HKC 110. However, the court should be ready to order separate trials of liability and damages where it is just and convenient to do so: Coenen v. Payne [1974] 2 All ER 1109. This approach was approved by Findlay J in Wincheer Investments Ltd v. Lobley Co. Ltd, unreported, HCA8145/1992. Separate trials of the liability and quantum should only be ordered in exceptional circumstances, where there is a clear line of demarcation between those issues : Marks v. Chief Constable of Greater Manchester Police, The Times, 28 January 1992.

11. In this case there is a clear line of demarcation between liability and quantum. The question is whether it is just and convenient to both parties to have separate trials particularly with regard to the question of costs.

12. The plaintiff argues that he is likely to establish liability against either or both of the defendants, because he slipped on the 1st defendant's surface on a patch of oil or grease which should not have been there. Following Ward v. Tesco Stores Ltd [1979] 1 WLR 810, the evidential burden shifts to the defendants to show that the accident did not arise from any want of care on their part. He is likely to succeed on liability. Therefore any costs expended in proving quantum are unlikely to be thrown away. It is not just or convenient to the plaintiff to require him to have two trials particularly where he is a senior banker who is required to travel overseas. In any event, the issue of quantum is not particularly complicated; it only appears so because the claim is for so much. Experts on the overseas elements of the claim are readily available.

13. The 1st defendant argues that the occupier's duty is not absolute. See Cheung Wai Mei v. Excelsior Hotel, HCA38/2000. In effect if the defendants can prove that there was no defect in the system which they operated, they will escape liability. The international elements in particular of the quantum issue mean that the cost of proving it will be high and costs should not be incurred until liability is settled.

14. It may be argued that the plaintiff has a strong case. There seems to be no real dispute that the accident happened where and how he said it did. The 1st defendant's guard will say that he was in the kiosk and on the scene immediately afterwards. Though he did not see the plaintiff fall, he did see the patch of oil. I accept that the evidential onus will shift to the defendants to prove that the accident did not arise from any want of care on their part. Per Megaw LJ in Ward at p.815:

"It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault; and to my mind the judge was right in taking that view of the presence of this slippery liquid on the floor of the supermarket in the circumstances of this case: that is, that the defendants knew or should have known that it was a not uncommon occurrence; and that if it should happen, and should not be promptly attended to, it created a serious risk that customers would fall and injure themselves. When the plaintiff has established that, the defendants can still escape from liability. They could escape from liability if they could show that the accident must have happened, or even on balance of probability would have been likely to have happened, even if there had been in existence a proper and adequate system, in relation to the circumstances, to provide for the safety of customers. But if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers."

15. However the 1st defendant at any rate seems to have a great deal of evidence to show that there was in place a very sophisticated system at the Landmark for checking and inspecting the premises for cleanliness, monitoring the performance of the 2nd defendant's cleaners, and getting any dangerous spillage dealt with promptly. It will be able to avoid liability under section 3(4)(b) of the Occupiers' Liability Ordinance, Cap.314, if it can show that it had (in the words of the statute) :

"acted reasonably in entrusting the work to an independent contractor and had taken such steps as [it] reasonably ought in or to satisfy [itself] that the contractor was competent and the work had been properly done."

16. We do not yet know what evidence the 2nd defendant will bring but again it should be able to escape liability if it can show that it had an adequate system to deal with what was foreseeable and that the oil or grease came on to the pavement so shortly before the accident that the adequate system could not have prevented it.

17. The other question of course is, if there is liability, who will bear it? It is not just a question of one defendant. Indeed, it never was because it appears that the Master knew that it was the plaintiff's intention to bring in the 2nd defendant.

18. It seems to me that until these questions of liability is settled it will not be just and convenient to the defendants to have to incur the costs of challenging the quantum of damages. Those costs are likely to be high. Granted that the plaintiff seems to be willing to incur those costs the necessity is for justice and convenience on both sides; see the judgment of Findlay J in Wincheer Investments Ltd.

19. For these reasons, I dismissed the appeal against the Master's order.

Interrogatories

20. The plaintiff on 29 December 2001, at the same time as it applied to join the 2nd defendant served on the 1st defendant a list of 20 Interrogatories. The position now, apparently, is that having discussed the matter with Miss Remedios for the 1st defendant, Mr Pirie for the plaintiff accepts that the information sought in Interrogatories nos.1-10, 18 and 19 is adequately given in correspondence from the 1st defendant's solicitors, and these Interrogatories should be withdrawn. However, the plaintiff seeks to have consideration of the application in respect of the rest of them to be adjourned until after the 2nd defendant has filed its witness statements. The 1st defendant's answer to this, leaving aside for the meantime any arguments on the merits, is that this must mean that the plaintiff accepts that those remaining Interrogatories are premature and as such fall to be withdrawn following the cases of Det Danske Hedeselskabet [1994] 2 Lloyds Rep.534 and Ngai Hung Chau v. Kwok Keung, HCA3731/1994.

21. Miss Remedios argues that Interrogatories should conform to the principles set out by Cheung J in Lee Nui Foon v. Ocean Park (No.2) [1995] 2 HKC 395, recently restated and applied by Deputy High Court Judge Gill in Rosslyn Services Ltd v. Milbrow Assets Ltd HCA3994/2000, as follows :

"(1) The interrogatories must relate to a 'matter in question' between the parties and must be 'necessary' either for disposing fairly of the cause or matter or for saving costs (Hall v Selvaco Ltd (1996) Times 27 March CA );

(2) The interrogatories must not be fishing, oppressive, prolix or imprecise. An interrogatory will be oppressive if the answer cannot be given without an examination of the respondent's record, with the expenditure of much time and trouble;

(3) The interrogatories must not be questions which went to the evidence the opposing party intended to adduce;

(4) The interrogatories must not be questions which required an answer which was a matter of opinion or for an expert;

(5) The interrogatories must not be questions which went to the facts which would assist in establishing the opposing party's case as opposed to the case of the party seeking to interrogate;

(6) The interrogatories must not be effectively asking for documents of discovery;

(7) If the interrogatories did not comply with the requirements of the rules under O.26. they might not be administered. Even if they did comply with the rules, nevertheless the court retained an overriding discretion as to whether or not to allow them to be administered. Where interrogatories without order were served, the court might order them to be withdrawn."

22. Further, she argues, Interrogatories tantamount to cross examination and/or seeking an opinion will not be ordered. See Man Sai Kun v. Leung Kit Kee Metal Works & Others [1998] 1 HKLRD.

23. I am obliged to counsel for her chart setting out how, in her view, each of the Interrogatories fails to conform to those principles. Leaving aside the other considerations it is, I think pretty obvious that Interrogatories nos.11 to 13 which relate to a document coming from the 2nd defendant are premature at this stage. Interrogatories nos.14 to 17 and 20 seek opinion and nos.14 to 17 are also tantamount to cross-examination. There is no reason for consideration of them to be adjourned. If the others can be withdrawn at this stage on the basis of information already given to the plaintiff, there was no reason for them in the first place. There will be an order in terms of the 1st defendant's summons, with costs (nisi) to the 1st defendant in any event.