This case arose from a collision on 9 July 2017 between a speedboat driven by Mr Dorynek and a jet ski driven by Mr Flath. Mr Corbin was a passenger on the jet ski. He suffered very serious injuries. The collision led to Mr Corbin commencing proceedings against both Mr Dorynek and Mr Flath where he alleges negligence against both.

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

Mr Flath 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.

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

Held: A split trial on liability and quantum is ordered. The application for determination as a preliminary issue whether Mr Dorynek and Mr Flath may limit their liability pursuant to provisions of the Shipping (Jersey) Law 2002 is refused.

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. 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 alter the conclusion that there is clear demarcation between liability and quantum. By the time of a trial on quantum the Court will have made its findings on why the collision took place.

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. 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. 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.

In relation to the application concerning the impact of the Shipping (Jersey) Law 2002, the real problem with this issue is, first, that it is not based on a schedule of agreed or assumed facts. Secondly, the amount of damages claimed is far from agreed. Thirdly, there is a factual dispute about whether the jet ski or the speedboat are vessels or ships and therefore whether 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.

The limitation of liability issue 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.

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 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.

[For subsequent proceedings, see Corbin v Dorynek [2022] JRC 238 (CMI2068).]