1 This summons was the defendant’s application to bifurcate the trial in HC/S 1041/2021 (“Suit 1041”), pursuant to O 33 r 2 of the Rules of Court (2014 Rev Ed) (“ROC 2014”). In Suit 1041, the plaintiff, Ms Dai Yi Ting, is claiming against the defendant, Mr Chuang Fu Yuan, in negligence for personal injuries arising from an accident on 27 February 2019. Broadly, Suit 1041 involves an e-scooter rented from the first third party, Grabcycle (SG) Pte Ltd, that was driven within the premises of the second third party, the National University of Singapore. The defendant was operating the e-scooter and the plaintiff was a pillion rider.

2 At the end of the hearing before me, I granted the defendant’s application and ordered that Suit 1041 be bifurcated, with the trial on liability to be heard separately from, and prior to, the hearing for the assessment of damages (if necessary). Nevertheless, because of the lack of specific case law on bifurcation in relation to personal injury cases like the present one, I now provide the full grounds for my decision.

3 At the hearing before me, Ms Istyana Putri Ibrahim (“Ms Ibrahim”) submitted on behalf of the defendant that it was just and convenient to bifurcate the trial. To begin with, Ms Ibrahim suggested that there are broadly three issues for determination at trial:

4 With these broad issues in mind, Ms Ibrahim advanced three reasons for the trial to be bifurcated:

5 The plaintiff was against bifurcation. Ms Michelle Kaur (“Ms Kaur”) submitted on behalf of the plaintiff that the plaintiff is a “sensitive” plaintiff. Specifically, the plaintiff has sustained multiple injuries that have impaired her brain’s functioning. As such, it would be unjust and unfair for the plaintiff to attend court twice: she would be faced with the strain of being on the stand twice and would also have to re-live the accident while struggling with the impairments caused by her brain injuries.

6 To substantiate this point, Ms Kaur showed me a report from the plaintiff’s psychiatrist, Dr Calvin Fones, which stated that “protracted litigation has been a major source of stress and serves as a maintaining factor of her depression”. However, I attached little or no weight to the report as it was not exhibited by way of an affidavit. Instead, the letter was attached as an annex to the plaintiff’s submissions for the hearing. In gist, however, the plaintiff’s case was that she dreads seeing the defendant twice over, as she would have to, should the trial be bifurcated.

7 Ms Kaur also submitted that bifurcation would not be cost-effective as more costs would be involved in attending court. Ms Kaur disagreed with the defendant’s position that costs would be saved if bifurcation was ordered, such that parties would not have to prepare for issues of quantification at the initial phase. In this regard, Ms Kaur further explained that the parties have been discussing the prospect of attending mediation and the third parties have requested an updated quantification of the plaintiff’s claim so that they can take instructions on mediation. As such, regardless of whether the matter is resolved at the trial on liability, the documents relating to the updated quantification must still be obtained so that the parties may attempt mediation. Accordingly, there was no need to bifurcate the trial.

8 Finally, Ms Kaur suggested that the defendant’s application for bifurcation was premature as the parties may reach a resolution at mediation and there would therefore be no need for further litigation in court.

9 In considering the parties’ arguments, I adopted as my starting point O 33 r 2 of the ROC 2014, which gives the court the power to order bifurcation to begin with. Order 33 r 2 provides that:

10 Being framed as a discretion with the use of the word “may”, it is implicit in O 33 r 2 that the normal practice is for a unified trial of all issues of fact and law, including issues of liability and damages. As such, the burden is on the party applying for bifurcation to convince the court that it is appropriate to make such an order.

11 Further, as the learned authors of Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“White Book”) note (at para 33/3/3), O 33 r 2 should be read together with O 33 r 3(2) since they both deal with the general power of the court to order the separate trials of separate issues or questions. Order 33 r 3(2) provides that “[i]n any [action begun by writ] different questions or issues may be ordered to be tried by different modes of trial and one or more questions or issues may be ordered to be tried before the others”. Broadly, the learned authors state that these rules:

By this view, the primary purpose behind the power to order bifurcation as provided for by O 33 r 2 read with O 33 r 3(2) of the ROC 2014 is to ensure the efficient conduct of a trial. Indeed, by avoiding (or potentially avoiding) the trial of unnecessary issues or questions, there will be a corresponding elimination or reduction of delay and expense in both the preparation for the trial and of the trial itself.

12 While this was not relevant for the present application, which proceeded under the ROC 2014, the power to order bifurcation is provided for more directly in the new Rules of Court (2021 Rev Ed) (“ROC 2021”). Order 9 r 25(2) of the ROC 2021 now provides that:

If bifurcation is ordered pursuant to O 9 r 25(2), then the court must, pursuant to O 9 r 25(12), give the appropriate directions, as set out in O 9 r 25(9), for the assessment of damages or the taking of accounts. Further, O 15 r 15 of the ROC 2021 also applies in relation to the subsequent directions needed on the assessment of damages following the hearing on liability.

13 An important distinction between the provisions providing for the power to order bifurcation in the ROC 2014 and the ROC 2021 is the presence of O 3 r 1 in the latter, which provides for the attainment of certain Ideals in civil procedure. In particular, O 3 r 1(3) provides that “[t]he Court must seek to achieve the Ideals in all its orders or directions”. As such, the power to order bifurcation provided for by O 9 r 25(2) of the ROC 2021 must be applied with the Ideals in O 3 r 1(2) in mind. These Ideals are “akin to constitutional principles by which the parties and the Court are guided in conducting civil proceedings” and they are “to be read conjunctively” (see Civil Justice Commission Report (29 December 2017) at Chapter 1, para 3 (Chairman: Justice Tay Yong Kwang)). The court is empowered to do what is right and necessary based on the facts of the case before it to ensure that justice is done, provided it is not prohibited from doing so and its actions are consistent with the Ideals (see Singapore Civil Procedure 2022 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2022) at para 3/1/4, citing Public Consultation on Civil Justice Reforms, Recommendations of the Civil Justice Review Committee and Civil Justice Commission (26 October 2018) at para 21).

14 At this juncture, it suffices to note that these Ideals relate to the promotion of expeditious (O 3 r 1(2)(b)) and cost-effective proceedings (O 3 r 1(2)(c)) that are achieved by the efficient use of court resources (O 3 r 1(2)(d)), and are all ultimately tailored towards the achievement of fair and practical results (O 3 r 1(2)(e)), which ensures the fair access to justice (O 3 r 1(2)(a)).

19 On the facts of Scintronix itself, Kan J held that it was “just and convenient” to bifurcate the trial (at [33]). He did not accept the defendant’s submissions that there was no clear demarcation between issues of liability and of damages. Indeed, the learned judge held that even if there had been some degree of overlap between the issues, that did not necessarily weigh against bifurcation if the facts of the case made bifurcation an appropriate order in the circumstances (at [28]). Further, the learned judge also said that the case for bifurcation would be stronger in cases where there are multiple claims (and, hence, multiple issues of liability) and multiple forms of damages claimed (and, hence, multiple issues of damages). This is because an order for bifurcation would isolate the issues of damages to be determined separately from those of liability (at [27]).

22 Looking beyond Singapore, the Northern Ireland High Court decision of Gibney v MP Coleman Ltd [2020] 11 WLUK 568 (“Gibney”) was also helpful. In that case, McFarland J upheld a Master’s order for bifurcating the trial of an employee’s claim against his employer following an accident at work, such that liability would be determined before quantum. The employee was working atop an asphalt storage bin clearing material from a ramp. The employee fell to the bottom of the bin and then onto the ground, suffering severe injuries. He brought claims against his employer alleging negligence and breach of statutory duty. The employer denied liability on the basis that the employee was carrying out a forbidden task in a forbidden area. In the event of a finding of liability, the employer asserted contributory negligence on the part of the employee. The Master hearing the case at first instance ordered that there should be split hearings, to first determine liability and then to determine quantum. On the issue of whether to order bifurcation, the court referred to the multi-factorial framework set out by Hildyard J in Electrical Waste v Philips Electronics [2012] EWHC 38 to guide its decision-making:

23 McFarland J then applied these factors to the facts and concluded that bifurcation was appropriate for reasons including: (a) the issues of liability and quantum were compartmentalised, and apart from the need for the legal representatives to attend both hearings, there would be no other duplication save for the plaintiff giving evidence twice; (b) the liability hearing (three days) would be much shorter than the quantum hearing (two weeks); (c) the liability case was ready for hearing, whilst the quantum case still required a significant amount of preparatory work to be carried out as it was complicated and required twelve different experts to give evidence; (d) a dismissal on liability would conclude the matter and conversely, a finding of liability (though not avoiding a final hearing on quantum) would still operate as an incentive to both parties to settle the action, reducing costs and delay; and (e) there was no evidence to suggest that the defendant, which opposed the proposed split hearing, would be prejudiced in any way, etc.

24 I drew on the factors articulated in Lee Chee Wei and Scintronix, as well as the multi-factorial framework that was applied in Gibney, to arrive at a list of relevant factors which I applied in deciding to order bifurcation in the present case.

26 In this regard, as I alluded to above at [11], the learned authors of the White Book opine that the primary purpose behind bifurcation is to ensure the efficient conduct of a trial. This view is further bolstered by Kan J’s opinion in Scintronix (at [25]) that bifurcation is intrinsically related to case management. Indeed, as Kan J pointed out, the prevailing sense among courts at present may be that bifurcation is an important, if not necessary, tool in ensuring that judicial resources are utilised in the most efficient manner possible. Accordingly, I construe the “just and convenient” test set out in Lee Chee Wei as being concerned with whether it is “just and convenient” to order bifurcation so as to achieve, as a primary purpose, the expeditious and cost-effective conduct of proceedings. In so construing, I have deliberately used the words found in the Ideals contained in O 3 r 1(2) of the ROC 2021 because the “just and convenient” test should be applied with these Ideals in mind for cases governed by the new ROC 2021.

28 In sum, proceedings must progress at an appropriate pace so that the right balance can be struck between achieving justice and convenience. It is a truism to say that justice delayed is justice denied (see the High Court decision of Attorney-General v Au Wai Pang [2015] 2 SLR 352 at [73]). But expedition for the sake of prompt resolution without any consideration of the other aspects of justice such as those contained in the Ideals wholistically would be missing the forest for the trees – for example, if the court determines a matter too quickly such that the decision does not yield a fair and practical result, justice would also not be achieved (see Jeffrey Pinsler SC, “The Ideals in the Proposed Rules of Court” (2019) 31 SAcLJ 987 at para 24). In my view, it is important to keep this bigger picture in mind when considering when it may be “just and convenient” to make an order for bifurcation.

33 Indeed, the changing sentiments on case management were also considered in Gibney. McFarland J said this at [6]:

It was emphasised that Coenen heralded a movement away from the earlier practice of shying away from split trials (ie, bifurcating the trial) save in exceptional circumstances, and instead, the modern approach is that the courts should be more ready to grant separate trials when just and convenient to do so.

43 In considering these particular factors, I started with two general considerations. First, while there may have been concerns against bifurcated trials in personal injury cases in the past, these concerns no longer exist. As Carswell LJ said in the Northern Ireland Court of Appeal decision of Millar (a minor) v Peeples and others [1995] NI 6 (“Millar”) (at 9–10), albeit in the Northern Irish context, jury trials in their system have become exceptional in personal injury cases. As such, the reasons for keeping an action in a unitary trial, such as those relevant in the US system, have been reduced. This may be why, as Lord Denning MR noted in Coenen (at 988), Winn LJ’s Committee recommended in the Report of the Committee on Personal Injuries Litigation (1968, Cmnd 3691) at para 494(b) “a more robust and less restrictive” approach towards the order of bifurcation in personal injury cases. This analysis applies equally in our context, which eschewed the use of juries decades ago. Accordingly, while the starting point is the same as with commercial cases, in that the normal practice is for a unified trial of liability and damages for personal injury cases, there should not be a presumption against bifurcation in personal injury cases, as some of the older cases appear to suggest.

44 Second, the tactical advantage that might accrue to a plaintiff in a personal injury case by not ordering bifurcation should not be a relevant consideration. In Millar, the plaintiff suffered severe injuries when he was hit by a car driven by the first defendant while crossing a road to attend a fete (an outdoor public function usually organised for charity) at his school. Traffic was heavy on that day. Furthermore, a line of stationary vehicles had built up behind a fire engine, which was one of the attractions at the fete. The plaintiff sued the first defendant for negligent driving. He also sued the North Eastern Education and Library Board (“the Board”) in negligence for failing to take steps to protect children who might be at risk from traffic around the fete. On the Board’s application, the Master granted an application for bifurcation. On appeal, a judge reversed the Master’s decision. The Board then appealed to the Court of Appeal. The plaintiff’s primary argument before the Court of Appeal was that it would be hard on him to give evidence twice, and that if the trial were not split, there would be a greater incentive for the defendants to settle.

45 Carswell LJ restored the Master’s decision and ordered that the trial be bifurcated. Writing for a unanimous court, the learned judge held that, in deciding if it was just and convenient to order bifurcation, the court should balance the advantages and disadvantages to each party and consider the public interest that unnecessary expenditure of time and money in a lengthy trial should not be incurred. In this regard, Carswell LJ emphasised that a court should not place undue weight on the tactical advantage that might accrue to a plaintiff by refusing to order a bifurcated trial. Such an advantage may occur because a defendant who is faced with a lengthy trial may be more inclined to settle on terms favourable to the plaintiff. However, Carswell LJ rejected the relevance of such considerations on the premise that the paramount duty of a court is to look at the interests of all parties in determining whether to order bifurcation. Thus, on the facts of Millar, while the plaintiff’s strain in having to give evidence twice should not be minimised, that had to be balanced against the considerable disadvantages that would result if the trial was not bifurcated. This included the quite important factor that the trial would become far longer and more expensive if it were not bifurcated.

46 Similarly, McFarland J in Gibney was confronted with the defendant’s argument that the plaintiff’s application for bifurcation was merely a tactical device to ground an interim payment application. In response, the learned judge pithily noted that it was his experience that “most applications, of whatever type, made by parties tend to be motivated to gain tactical advantage”. This is the self-evident essence of adversarial proceedings. However, McFarland J maintained that each case must be dealt with on its own facts and appeared to discount the primary relevance of any supposed tactical advantage accruing to the plaintiff.

47 Having taken into account these general considerations, I now turn to explain the particular factors that may affect the order for bifurcation in personal injury cases.

48  First, the greater the uncertainty in the plaintiff’s future, the more likely it will be for an order for bifurcation to be made. In the English Court of Appeal decision of Stevens v William Nash Ltd [1966] 1 WLR 1550, the plaintiff suffered multiple injuries to his right arm and hand. The prognosis for his future was uncertain. However, the plaintiff desired to take a training course of six months’ duration to qualify as a capstan lathe setter operator. While he would lose his earnings during training, he could, within 18 months of qualifying, earn a similar wage to that prior to the accident. The unified trial for liability and damages took place two years after the accident. The plaintiff’s arm had only been released from a plaster cast three days before the trial. Winn LJ, in allowing the plaintiff’s appeal to increase the damages awarded, also suggested that it might have been preferable for the trial judge to have tried the issue of damages sometime after the issue of liability. This was because the trial judge simply had little certainty on the plaintiff’s future so as to be able to make an appropriate order on the damages to be awarded (at 1554–1555).

49 Second, the later a firm prognosis of the plaintiff can be made after the incident, the more likely it will be for an order for bifurcation to be made. In the Court of Appeal decision of Hawkins v New Mendip Engineering Ltd [1966] 1 WLR 1341, the plaintiff suffered a head injury at work. While drugs helped to keep his condition in check, there remained a 50% chance of major epilepsy developing but no firm prognosis could be made until five years after the accident. If the plaintiff did develop major epilepsy, he could become virtually unemployable. The defendant appealed against the trial judge’s award, arguing that it was too high. Winn LJ commented that this would have been a suitable case for bifurcation, and for the trial for damages to take place five years after the trial for liability, when there would be greater certainty in terms of the plaintiff’s prognosis (at 1347–1348).

50 Third, depending on the complexity of the facts, as well as the existence of video or other documentary evidence, it may be better for the trial for liability to take place before damages. This will be especially the case if an earlier determination on liability is made easier because the facts are fresher in everyone’s memory (see White Book at para 33/3/5).

51 Fourth, if an order may be made for several actions arising out of the same accident to be consolidated up to the determination of liability, with liberty to each claimant to have his own damages assessed separately, then this ought to be considered when deciding whether to make a bifurcation order (see White Book at para 33/3/5 citing Healy v A Waddington & Sons Ltd [1954] 1 WLR 688). In this connection, it is relevant to point out the fact that Coenen was a case with two consolidated actions concerning a road traffic collision between two vehicles.

52 With the principles discussed in mind, I decided that this was an apt case for bifurcation. The onus was on the defendant to show why it was necessary to bifurcate the matter. Applying the “just and convenient” test, I agreed that this was an apt case for bifurcation for the following reasons that were advanced before me.

53 First, I found that there was a clear demarcation between the issues of liability and of damages. Indeed, I saw no indication that the plaintiff intended to run a case which would result in issues of liability and of damages being intertwined. As such, I agreed that there could be substantial cost savings if the issues of liability are decided before the quantum of damages. There will be no abortive work for the damages issue should the liability issue be decided in favour of the plaintiff.

54 Second, I agreed with the defendant that there are potentially difficult issues arising from the multiplicity of parties involved. This is especially the case since the defendant, as he is entitled to do, has brought in the two relevant third parties in the action. In particular, I also agreed with the defendant that the issues of damages might be inherently complex. They may potentially require a rather involved process. It would therefore be more efficient and in the interests of justice for issues of liability to be decided first.

55 In my view, the defendant had established a good case for bifurcation to be ordered. I turned then to consider the plaintiff’s objections. In sum, while I sympathised very much with the plaintiff’s plight, I concluded that the reasons she advanced were not legally material to a determination on bifurcation.

56 First, as important as they are, the plaintiff’s difficulties, such as having to attend trial twice over, were personal in nature. As with the case in Millar, these were therefore not strictly relevant to the determination on bifurcation, which is more focused on the broader questions of efficiency (which is in the public interest) and whether substantive justice can be better achieved for all parties (including the plaintiff but also the defendant).

57 Second, I disagreed that bifurcation may not be cost-effective. Instead, as I have explained in relation to the defendant’s reasons, given the potentially difficult issues raised at the liability stage, including the liability of the third parties, it may be more cost-effective for the liability issues to be decided first. Indeed, if the liability issues are eventually determined against the plaintiff, then all parties can save costs through the avoidance of assessment proceedings.

58 Third, the plaintiff also alluded to the fact that the third parties had already been asking for a quantification of her claims so that they could take instructions on mediation. I did not think that this assisted the plaintiff. Whether proceedings are bifurcated (or not) should not stop her or her solicitors from providing this information, which would necessarily be tentative prior to the final judicial disposition of the matter, to the third parties.

59 For all the above reasons, I ordered for the trial to be bifurcated with costs of the application to be paid to the Director of Legal Aid.