Jersey Unreported Judgments

Hearing (Civil) - reasons - split trial on liability - application for a determination.

[2020]JRC031

Royal Court

(Samedi)

18 February 2020

Before     :		Advocate Matthew John Thompson, Master of the Royal Court.
			2019/168
Between	Giles Robert Piers Corbin		Plaintiff
And	Michal Bartolomiej Dorynek		First Defendant
	Tyson Werner Hermann Flath		Second Defendant
			2019/178
And	Tyson Werner Hermann Flath		Plaintiff
	Michal Bartolomiej Dorynek		Defendant

 

Advocate D. J. Benest for the Plaintiff.

Advocate C. Hall for the First Defendant in action 2019/168 and Defendant in action 2019/178. 

Advocate S. Franckel for the Second Defendant in action 2019/168 and Plaintiff in action 2019/178. 

CONTENTS

		Paras
1.	Introduction	1-2
2.	Background	3-14
3.	Submissions	15-39
4.	Decision	40-59

judgment

the master:

 

Introduction

1.        This judgment contains my detailed written reasons for ordering a split trial on liability but refusing an application for a determination at the same time as a split trial on liability that the defendants in action 2019/168 may limit their liability pursuant to provisions of the Shipping (Jersey) Law 2002. 

2.        It is also right to record at the outset of this application that at a previous hearing I raised whether any party had any objection to me sitting on this matter because many years ago Mr Corbin (the plaintiff) was an employee of the law firm of which I was a partner and for a few months I was responsible for supervising Mr Corbin's work.  While I personally did not consider that a fair minded and impartial observer would have concluded that there was a real possibility of bias (see Syvret v AG and Connetable of Grouville [2011] JCA 130), I nevertheless felt it prudent to make enquiries of the advocates of each of the parties to see whether any party wished to raise any objection.  All confirmed that they had no such objection. 

Background

3.        The background to the application concerns a collision that took place on 9^th July, 2017.  The collision was between a speedboat driven by Mr Dorynek and a jet ski where Mr Flath was the driver.  Mr Corbin was a passenger on the jet ski. 

4.        It is not in dispute that, as a result of the collision, Mr Corbin suffered very serious injuries.  I wish to record expressly that both counsel for Mr Dorynek and Mr Flath made it clear, in making their submissions, that they did not intend any disrespect or to cause any offence to Mr Corbin.  I also commend both counsel for shaping their submissions in an appropriate manner reflective of the serious injuries suffered. 

5.        All counsel also recognised quite appropriately that there is a serious issue to be determined about the precise extent of Mr Corbin's injuries, the extent of his recovery from those injuries and the financial impact of those injuries upon him.  These are all matters in issue when the trial on quantum takes place. 

6.        The collision firstly led to Mr Corbin commencing proceedings against both Mr Dorynek and Mr Flath where he alleges negligence against both. 

7.        The allegations against Mr Dorynek in summary contend that he failed to keep a proper look out, failed to proceed at a safe speed, failed to reduce speed, failed to appreciate a risk of collision, failed to steer to avoid a collision, failed to give the jet ski priority, failed to alert the jet ski to the presence of the speedboat and permitting too many passengers on board reducing the manoeuvrability of the speedboat.  Mr Corbin also relies on Mr Dorynek's conviction (based on a plea of guilty not a trial) for operating a ship in territorial waters without due care and attention or without consideration of other people contrary to Regulation 9(2) of the Harbours (Inshore Safety) (Jersey) Regulations 2012.  The Royal Court's conclusions when passing sentence were reported at AG v Dorynek [2019] JRC 025A.

8.        Mr Corbin's claim against Mr Flath in summary is that Mr Flath failed to keep a proper look out, failed to proceed at a safe speed, failed to avoid a collision, failed to appreciate that the risk of a collision was a real one and to take steps accordingly, failed to take evasive action when it was apparent that Mr Dorynek was not taking evasive action and failing to alert the speedboat to the presence of the jet ski. 

9.        Mr Dorynek denies the allegations against him.  In particular he denies that he was required to give way to the jet ski and argues that the jet ski was trying to overtake the speedboat and therefore Mr Dorynek had priority.  Mr Dorynek also argues that it was Mr Flath who caused the collision even if any negligence was established against Mr Dorynek.  The conviction is denied as being relevant to who caused the collision. 

10.      Mr Dorynek also makes a claim of contributory negligence against Mr Corbin for distracting Mr Flath by talking to him when Mr Flath was driving the jet ski. 

11.      Mr Flath's case is that the collision and the injury were solely caused by Mr Dorynek.  Mr Flath further denies any breach of duty and argues that he was keeping a constant look out and was proceeding at a safe speed. 

12.      Both Mr Dorynek and Mr Flath plead that if they are liable they are entitled to limit their liability under the provisions of Section 119 of the Shipping (Jersey) Law 2002 giving effect to the Convention on Limitation of Liability for Maritime Claims 1976.  The issue between the parties is whether this convention applies to the jet ski and the speedboat. 

13.      Mr Flath has also issued proceedings against Mr Dorynek.  Mr Flath's proceedings claim both damages for bruising and the trauma he suffered as a result of the collision, in particular having to rescue Mr Corbin, as well as seeking an indemnity or contribution for any losses or costs Mr Flath might be found liable to pay Mr Corbin. 

14.      On 20^th November, 2019, I ordered that the two claims be heard together and made general orders for discovery.  I also directed that a hearing should take place to determine whether any split trial or preliminary issue should be ordered.  

Submissions

15.      Advocate Franckel for Mr Flath firstly argued that a split trial was appropriate because it was not fanciful or improbable that his client might be absolved altogether.  He emphasised that his client had not been the subject of any criminal investigation or prosecution.  This was not a case therefore where Mr Flath would inevitably be found liable.  He also contended that it was not appropriate for me to assume there would be any liability.  Even if, contrary to Mr Flath's position, the court felt that Mr Flath might face some liability, this was still a reason to order a split trial so that the parties knew where they stood. 

16.      Advocate Franckel also emphasised that in his opinion the case advanced on behalf of Mr Dorynek that he was not liable at all was fanciful, whereas the position of Mr Flath that he was not liable was very much open for argument. 

17.      In respect of quantum the case was clearly complex.  This could be seen by virtue of several medical experts being required.  The question of loss of earnings was also complicated because the court was being required to assess the difference between Mr Corbin's earnings as a partner in Mourant but for the accident compared with his actual earnings after the accident.  The complexity could be seen from both expert evidence being required from a chartered accountant and certain issues about the confidentiality of discovery sought from Mourant. 

18.      In respect of medical expert evidence, what further treatment Mr Corbin required was still not clear.  This meant that the process of Mr Corbin finalising his expert reports could not yet start.  Those reports were also inevitably going to be complex and would take some time to produce.  It was only fair that the defendants were allowed an appropriate time to produce their expert evidence in response.  The relevance of this complexity was that if one trial took place, which Advocate Franckel accepted was the starting point, such a trial could not take place until the latter part of 2021 or early 2022.  Yet, the factual dispute on liability was separate and distinct from assessment of damages and could be heard this year.  All that was required for a trial on liability by contrast was relatively straightforward, namely statements from factual witnesses and discrete expert evidence on why the collision took place.  There would only be one or two experts from each party.  Many factual witnesses had also already given statements to the police in relation to their criminal investigation and accordingly progression to a trial on liability could proceed in relative short order. 

19.      In terms of determining whether there was a limit on liability, this was a discrete issue and was primarily a question of law.  The benefit of determining whether or not the defendants could limit liability at this stage was again that all parties would know where they stood when it came to assessing quantum including whether or not to make any offers if a defendant was liable.  Both defendants would then know what their prospective share of any loss would be, which could promote earlier settlement. 

20.      In relation to appeals, an appeal on liability was relatively unlikely because it would require the Court of Appeal to be persuaded to interfere with the assessment by the Jurats of factual and expert evidence which was a high threshold.  He accepted there could well be an appeal on any ruling about whether or not either defendant, if found liable, could limit their liability but he suggested that such right of appeal could run parallel in relation to preparation for a trial on quantum. 

21.      To the extent that the plaintiff suggested there was an overlap between a trial on liability and a trial on quantum due to the psychological impact of the accident on Mr Corbin and Mr Flath, Advocate Franckel drew a distinction between why the accident took place and the psychological impact of that accident.  In his view the latter was a matter for a trial on quantum. 

22.      In respect of delay, he accepted that ordering a split would lead to the trial on quantum being delayed but argued that a trial of all issues was going to be delayed in any event; yet there was no reason to delay a trial on liability.  He therefore argued that a split trial would dispose of a substantial part of the matter. 

23.      Finally, in relation to the suggestion advanced that Mr Corbin did not want a split trial, the authorities did not require me to give pre-eminence to the views of a plaintiff.  In any event Advocate Franckel argued that it was important to his client to have certainty on whether or not he was responsible because his client felt he had suffered unfairly from the public's perception of his responsibility. 

24.      Advocate Benest's position was firstly to remind me that the starting point in respect of any application for a split trial or to determine a preliminary issue was that generally all matters in dispute should be heard together.  He also contended that Advocate Franckel was conflating the principles as to when a split trial might be ordered with when a preliminary issue might be ordered.  The application for liability to be heard before quantum was an application for a split trial whereas the application to determine the effect of the Shipping (Jersey) Law 2002 was an application for a preliminary issue.  While the tests for these applications were well-known they were slightly different.

25.      This led Advocate Benest to accept that it was possible that I could grant part of the application and refuse part. 

26.      In relation to the application to determine whether the amount of damages payable might be hindered, he contended it was wrong to ask the court to cap the amount of any damages payable without understanding what those damages were.

27.      He also emphasised the test set out in McLoughlin v Jones and Ors [2001] EWCA Civ 1743 which I had applied in Stock v Pantrust International SA [2015] JRC 268 at paragraph 14.  In particular, he contended that there were no agreed or assumed facts because it was very much in dispute whether or not the limitation of liability applied to the jet ski or the speedboat.  The question of law also required expert evidence about the characteristics of the jet ski, and the speedboat to know whether or not the provisions of the Shipping (Jersey) Law 2002 applied.

28.      He also emphasised that on this question there would be an appeal by whoever was unsuccessful before the Royal Court which would delay the trial on quantum. 

29.      In relation to a trial on liability without a preliminary issue, Advocate Benest fairly accepted it was possible for such an order to be made, but he emphasised that his client was not in favour of such an order.  He suggested there was an overlap in evidence because both trials would hear evidence about the accident. 

30.      In addition, if Mr Corbin had to give evidence twice, he would therefore have to go through the events that happened at two separate trials. 

31.      In relation to Mr Dorynek, Advocate Benest emphasised in his view that it was fanciful that Mr Dorynek would escape liability because of the criminal conviction.  Driving a speedboat without due care and attention was tantamount to a finding of negligence.  He also described the plea of contributory negligence against Mr Corbin as being odd. 

32.      In relation to Mr Flath it was not fanciful to conclude that a level of liability would be imposed on Mr Flath.  He fairly accepted that there was some benefit in an allocation of responsibility between Mr Dorynek and Mr Flath based on his view that both were likely to be found to be responsible to some degree. 

33.      He also fairly accepted that due to recent medical evidence that had emerged, it was going to take some significant time for expert evidence to be produced by all parties for a trial to take place, meaning that a single trial could not take place at least until sometime in 2021.  He hoped that the defendants' experts had started the process of analysing the extensive medical records disclosed to date which led to a submission that the process of producing the defendants' reports might not take as long as contended for by Advocate Franckel. 

34.      Advocate Hall for Mr Dorynek generally supported the submissions of Advocate Benest save that she argued it was fanciful to say that Mr Flath would escape liability.  This was based on the report produced for the criminal prosecution against her client which concluded that there was human error on the part of Mr Flath because he failed to keep a look out.  Advocate Hall observed that in relation to the present application to date that there was no expert evidence produced by Mr Flath to support his assertion that he was not liable at all.  She also maintained her position that Mr Dorynek's defence was not fanciful and that he was entitled to argue that Mr Flath was to blame.  

35.      In relation to a split trial on liability she argued that this would cause delay.  In this case expert evidence would be significant for determination of issues of liability and quantum and would allow the parties, once such evidence had been exchanged, to evaluate the extent of issues between the parties.  The question of settlement would very much depend on the expert evidence rather than the opinions of those involved in the collision.  A single trial with all such expert evidence being produced would therefore promote settlement.  

36.      In relation to the preliminary issue Advocate Hall's position was that matters could still settle because parties were able to take a view on whether they could limit any liability. 

37.      Advocate Hall further agreed with Advocate Benest that the impact of Mr Corbin having to give evidence twice was an important factor and should be given greater weight in deciding what steps to take. 

38.      It is also right to record that Advocate Hall raised at the outset of the hearing that her client was considering a separate application to the Royal Court in relation to whether or not liability could be limited under the Shipping (Jersey) Law 2002 because of possible claims by passengers in the speedboat or by those in the speedboat that had come to the aid of Mr Corbin and assisted in the rescue of Mr Corbin.  The issue was how far any limitation of liability might apply to claims which could be brought by such individuals.  Some of those individuals were minors and therefore any claims would not be prescribed for a number of years.  The question about how far any applicable limitation of liability applied to claims arising from the same incident had not yet been determined.  If the approach of Mr Flath were adopted in relation to seeking early determination on an applicable limitation of liability, this could fail to deal with the entire question because of other claims.

39.      Advocate Franckel in reply emphasised that no conclusions could be drawn in relation to the report produced for the criminal investigation because his client played no part in that report being produced.  To the extent that the Royal Court when sentencing Mr Dorynek had made observations about who was to blame, these observations were qualified and expressly recognised that the Royal Court had not had the benefit of hearing from Mr Flath.  This meant Advocate Franckel did not have to persuade me that it was inevitable that Mr Flath would be excused.  His position remained that I could not rule out such a possible outcome. 

Decision

40.      In relation to the applicable legal principles, in relation to ordering a split trial I reviewed these in Le Claire v Brown [2014] JRC 187A.

41.      The particular factors were set out in Barreto v Sanguy [1990] JRC 061A cited at paragraph 13 of Le Claire as follows:-

"(a)     an order for the separate trials of the issues of liability and damages will only be made if there is a clear line of demarcation between these issues on the pleadings, and not where they interact upon each other;

(b)       where the issue of liability is separate and distinct for the issue of damages, litigants should take advantage of the facilities which are afforded of having the question of liability decided as a preliminary issue before the issue of damages;

(c)       this is especially so where the issue of damages is detailed and complicated;

(d)       in actions for damages for personal damages, the issue of liability may be ordered to be tried before the issue of damages where there is an element of uncertainty about the plaintiff's future or where no firm prognosis is possible until some years after the accident;

(e)       in considering whether to order the separate trial of the issue of liability before damages, regard will be had to the benefits that will thereby accrue to the parties, e.g. an earlier determination on the liability while the facts were fresher in everyone's memory, as against the hardship or prejudice that might thereby be occasioned to them."

42.      Taking each of these factors in turn, in my judgment there is a clear line of demarcation between issues of liability and damages. The question of liability ultimately focuses on who was responsible for the collision.  The question of damages flows from what injuries and loss of earnings Mr Corbin suffered as a result of the collision.  I appreciate that ordering a split trial requires evidence to be given twice by Mr Corbin.  However, the fact that a claim is made for damages for the psychological impact of the accident does not in my judgment alter the conclusion that there is clear demarcation between liability and quantum.  I consider the distinction drawn by Advocate Franckel between Mr Corbin having to give evidence about the accident and the impact of the accident is the right analysis.  In addition, by the time of a trial on quantum the court will have made its findings on why the collision took place.  The focus on Mr Corbin's evidence at any later trial on quantum will therefore only be on the impact of the collision not what occurred.

43.      There is also a benefit in having an earlier trial on liability because the factual evidence will also to a significant degree depend on oral recollection.  As I noted in Le Claire v Brown, while there is documentary evidence by reference to statements given to the police, there is always a danger of memories fading after the passage of time.  That same risk exists in this case. 

44.      The question of damages in this case is obviously detailed and complicated as all parties accepted.  This is not only because of the extent of the injuries suffered by Mr Corbin but also because Mr Corbin is still exploring possible treatments available to him, which means that the extent of his recovery from the collision is not fully clear.  The reports he relies upon will not therefore be disclosed for some time; that timeframe cannot also be specified at present while there is the possibility of further treatment. Although the defendants' experts can start their analysis of the records disclosed, they will also have to review any records of any future treatment and are likely to want to conduct an assessment of Mr Corbin in person before production of a final report. This also takes time and supports the view that the case will not be ready for a single trial for a significant period of time. In my judgment a single trial would be unlikely to take place at least until the latter part of 2021 and possibly not before early 2022.  By contrast a trial on liability could take place this year.

45.      In addition, the question of what loss of earnings Mr Corbin has suffered as a result of the collision is complex because the Royal Court in summary will be asked to make a judgment on how Mr Corbin's career would have developed if the collision had not occurred, compared with how his career has developed.  In part this requires an analysis of the financial records of Mourant; it also requires a judgment to be made, possibly using appropriate comparisons with others, about what Mr Corbin's earning potential would have been.  The wider context for this is that the divisions of profits within law firms now much more reflect the individual contribution of a partner to that law firm compared to others. 

46.      A split trial on liability will also provide benefits to the parties.  Ultimately, both defendants will know where they stand and which of them is to blame for the accident.  In my judgment this will be a significant benefit because both will know whether they are liable or not and, if they are, in what proportion.  There is also a benefit to the plaintiff because if liability is determined sooner rather than later the ability to apply for an interim payment is much more straightforward.  (See paragraph 23 of Le Claire v Brown).

47.      A split trial will also allow determination of whether or not either defendant is liable at all.  In relation to the second defendant, his case is not fanciful that he was not liable in the sense that any summary judgment brought against the second defendant would not have any chance of success, which means that there is a real issue to be tried about whether he is to blame and in my judgment one which should be determined sooner rather than later. 

48.      In relation to Mr Dorynek, because of the criminal conviction, I consider that the hurdle he faces to persuade a court that he was not responsible at all for the accident is a higher one than Mr Flath.  Again however, whether he is liable requires a trial because it depends on the Jurats' assessment of the oral recollection of all factual witnesses and the expert evidence adduced by all parties. It is not impossible that the Jurats may conclude having heard all the evidence and from all parties that he is not to blame for the collision.  The fact that a claim might be difficult as long as it carries some degree of conviction means that a trial is required to give certainty to all parties.  A split trial will also apportion responsibility if Mr Flath is also found to have been at fault.  

49.      In relation to an appeal following a trial on liability, I said this at paragraph 27 of Le Claire v Brown:-

"27.    Advocate Benest also contended that the possibility of an appeal in this case was limited.  This is because no issues of law arise.  The Royal Court trial will be solely on the facts.  As is well known, the Court of Appeal is reluctant to interfere with the Royal Court's assessment of factual witness evidence unless there is a clear case of something having gone wrong.  While the possibility of an appeal can never be ruled out, I consider there is force to the points made by Advocate Benest, which means that the prospect of an appeal on purely factual grounds is less than a case where there are complex points of law to be resolved before liability can be determined."

50.      I consider the same analysis applies to a split trial on liability in the present case.  I accept that ordering a split trial may put some additional pressure on the plaintiff in terms of having to give evidence twice.  However, the focus of disputes between parties should be on the real issues between them.  In this case by the time of any trial on quantum the extent of Mr Corbin's injuries and his recovery will be known.  The heart of the dispute is therefore much more likely to be disagreements between experts about future recovery and Mr Corbin's claim for loss of future earnings. 

51.      For all these reasons I concluded that separate trials on liability and quantum were appropriate.

52.      In relation to the application concerning the impact of the Shipping (Jersey) Law 2002, the relevant test was reviewed by me in Stock v Pantrust where at paragraph 14 I stated as follows:-

"14.    He also referred me to a decision of the English Court of Appeal reported at McLoughlin v Grovers [2001] EWCA Civ 1743.  In setting aside a first instance judgment where a preliminary issue had been ordered and had taken place, the English Court of Appeal were critical of a trial on the issue of foreseeability of damage only.  Mr Justice David Steel at paragraph 65 of the decision stated:-

"No attempt was made to distinguish between the factual investigation required for the purposes of the limitation plea as opposed to the issue of foreseeability.  It was wholly impracticable for there to have a full trial of the factual issues pertinent to foreseeability.  It was an issue that should have presented on agreed or assumed facts.  If this was not a practical proposition, the issue of foreseeability should never have been taken separately.

In my judgment, the right approach to preliminary issues should be as follows:-

a.        Only issues which are decisive or potentially decisive should be identified;

b.        The questions should usually be questions of law;

c.        They should be decided on the basis of a schedule of agreed or assumed facts;

d.        They should be triable without significant delay, making full allowance for the implications of a possible appeal;

e.        Any order should be made by the court following a case management conference.""

53.      In relation to an argument about limiting liability, this will have a significant impact.  The real problem with this issue is firstly that it is not based on a schedule of agreed or assumed facts.  Secondly, the amount of damages claimed is far from agreed as noted above.  Thirdly, there is a factual dispute about whether the jet ski or the speedboat are vessels or ships and therefore whether or not the Shipping (Jersey) Law 2002 applies at all.  The question of law to be determined therefore requires factual and expert evidence.  If this were heard at the same time as the trial on liability it would lengthen the trial on liability and also make it more complex.  

54.      I also consider in relation to this issue, because it has not been heard before, that it is much more likely to lead to an appeal whatever the first instance decision.  This is in contrast to ordering a split trial on liability.  If the point is one of general importance to users of small craft, it is not improbable or fanciful for the issue to end up in the Privy Council.  Even if preparations for a trial on quantum could start, it would not be proportionate to hold a complex and therefore expensive trial on quantum while there was an appeal outstanding.  Ordering the preliminary issue asked for therefore runs the very real risk of delay to a trial on quantum beyond the time I consider that it will take to be ready for such a trial.  

55.      While there is a superficial attractiveness to the submission that it would be desirable for the parties to know where they stand in terms of whether or not they can limit liability, there are other means available to the defendants to protect their position in terms of arguing that their liability is limited by payments into court or without prejudice save as to costs offers.  The defendants, represented by insurers, are in a position to calculate what that limitation might be and make a judgment whether to take such steps.  The position in terms of liability by contrast requires the evaluation of factual and expert evidence to assess who might be to blame and therefore involves more difficult judgment calls in relation to any without prejudice save as to costs offers on liability.  Such offers may not therefore have the same protection as an offer based on the application of the relevant convention. 

56.      The issue of how far claims may be limited may also be complicated by any application Advocate Hall makes on behalf of Mr Dorynek for a ruling that the limitation of liability applies to all possible claims arising out of the collision.  Such an application should not delay a trial on liability. 

57.      The other conclusion I have reached is that this part of Mr Flath's application is an example of approaching determination of a case on an issue by issue basis which the courts on various occasions have warned against (see for example Cohen, Kerr & Anor v Arbitrage Research Trading Ltd [2019] JRC 229).  I therefore refer to the well-known warning in Public Services Committee v Maynard [1996] JLR 343) cited at paragraph 13 of Stock v Pantrust as follows:-

"However, in our judgment, the Royal Court should consider its current practice.  To single out bare points of law in this way (which might, when the facts are found, prove to be hypothetical) is likely to increase costs and to extend the time before the plaintiff knows whether he or she is to receive damages for his or her injury and receives the damages awarded.  Justice delayed is usually justice denied, particularly in personal injury cases, in which the normal approach should be to fix as early a date as possible for the trial of all issues."

58.      For these reasons I refused the application to determine whether or not the liability of Mr Flath (and Mr Dorynek) should be limited by way of a preliminary issue to be determined at the same time as a trial on liability. 

59.      Finally, as a result of this decision I requested that the parties look to agree directions to progress the matter to a trial on liability as well as agreeing what further orders were required in respect of discovery.  In relation to the financial records of Mourant, I indicated that I was sympathetic to making appropriate orders to protect commercially sensitive and private information from entering the public domain. 

Authorities

Shipping (Jersey) Law 2002

Syvret v AG and Connetable of Grouville [2011] JCA 130

Harbours (Inshore Safety) (Jersey) Regulations 2012

AG v Dorynek [2019] JRC 025A

Convention on Limitation of Liability for Maritime Claims 1976

McLoughlin v Jones and Ors [2001] EWCA Civ 1743

Stock v Pantrust International SA [2015] JRC 268

Le Claire v Brown [2014] JRC 187A

Barreto v Sanguy [1990] JRC 061A

Cohen, Kerr & Anor v Arbitrage Research Trading Ltd [2019] JRC 229

Public Services Committee v Maynard [1996] JLR 343