THE KOWLOON MOTOR BUS CO. (1933) LTD. v. CHUNG TAK HI AND ANOTHER

DCCJ 6579/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.6579 OF 2001

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JUDGMENT

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Background:

[1] The Plaintiff is a franchised bus operator and the owner of a double-decker bus, registration no. GW 2033 (the "Bus"). The Plaintiff is also the owner of a bus stop shelter located on westbound Prince Edward Road near Ping Shek Estate. At the relevant time, the First Defendant was the driver of a public light bus, registration no. GY 6462 (the "PLB") and the Second Defendant was its owner.

[2] At approximately 2:08 p.m. on 9/12/1999, the Bus had just completed loading and unloading passengers at a bus stop bay located on westbound Prince Edward Road near Ping Shek Estate. The First Defendant drove the PLB into the bus stop bay and collided with the rear of the Bus.

[3] The PLB first ran into the left rear of the Bus with its right front and then it mounted the pavement and rammed into the aforesaid bus shelter.

[4] The collision caused damages to the Bus and the bus shelter totaling HK$90,604.80.

[5] Part of the Defendant's evidence were four police statements given by passengers on the PLB. The Defendant had issued four Praecipe for Subpoena for these witnesses. Some of the subpoenas were undelivered. Only Mr. Chan Kai Wing and Ms. Chan Ka Yan appeared.

[6] Mr. Simon Ho, counsel for the Defendant asked for a short adjournment to speak to these two witnesses. Ms. Choice Choi, counsel for the Plaintiff, did not object and I granted the adjournment accordingly.

[7] After the adjournment, Mr. Ho advised me the two witnesses had no recollection of the accident and asked for permission to withdraw their police statements; however, Mr. Ho informed me that the Plaintiff wished to retain these two witnesses as Plaintiff's witnesses. Accordingly, Mr. Chan and Ms. Chan became the Plaintiff's rather than the Defendant's witnesses.

[8] Prior to the hearing, Mr. Ho confirmed that the Defendants had no dispute on the quantum as claimed by the Plaintiff. The Defendants' defence was solely on liability.

The Plaintiff's Case:

[9] The Plaintiff alleged that at the time of the collision, the Bus was stationary and completely within the boundary of the bus stop bay. The First Defendant had negligently collided into the rear of the Bus and rammed into the bus shelter, thereby causing damages to both. The Second Defendant was the owner of the PLB at the relevant time and was vicariously liable to the negligent act of the First Defendant.

[10] The alleged negligent acts were:

"(a) failing adequately or at all to observe or heed the presence of the said bus;

(b) failing to have any or any sufficient control of the said Public Light Bus;

(c) driving too fast in the circumstance;

(d) causing or permitting or allowing the said Public Light Bus to lose control; and

(e) failing to stop slow down swerve or in any other way so to manage or control the said Public Light Bus as to avoid the said accident."

The Defendants' Case:

[11] The First Defendant alleged at the time of the collision, he was driving on far left lane (lane 1) going at about 60 kilometers per hour, westbound on Prince Edward Road (a 3-lane motorway). Before he approached the area of the bus shelter, he observed that there was a Green Public Light Bus (the "Green PLB") approaching from the far right lane (lane 3) at high speed. When the First Defendant approached the area of the bus shelter the Green PLB suddenly cut into lane 1, directly from lane 3, at a sharp angle. To avoid colliding with the Green PLB, the First Defendant had to swerve left and brake hard. While braking, the First Defendant lost control of the PLB and it skidded into the Bus, mounted the pavement and rammed the bus shelter.

The Issue:

[12] There was only one issue in this matter: Was the First Defendant negligent at the relevant time?

The Law:

[13] The relevant law is the same as in any negligence claim. The Plaintiff must prove that: (1) the Defendant owed it a duty of care; (2) the First Defendant was in breach of that duty; (3) it suffered damages as a result of the First Defendant's breach; and (4) the damages were reasonably foreseeable.

[14] Since it was accepted that all road users owed all other road users a duty of care, the Plaintiff did suffer damages due to the collision and the Plaintiff's loss was clearly foreseeable, duty of care, damages and causation were not at issue. The Defendants had contested liability based solely on their allegation that the First Defendant was not in breach of the requisite duty of care.

[15] Mr. Ho stated that the burden of proving the First Defendant was negligent at the relevant time rested solely on the Plaintiff. In Ng Chun Pui v. Lee Chuen Tat [1988] 2 HKLR 425 (at 427), Lord Griffiths explained:

"The judge however was of the view that, despite those findings of fact, because the plaintiffs had originally relied upon the doctrine of res ipsa loquitur, the burden of disproving the negligence remained upon the defendants and they had failed to discharged it. In their Lordships' opinion this shows a misunderstanding of the so called doctrine of res ipsa loquitur, which is no more than a use of a latin maxim to describe a state of the evidence from which it is proper to draw an inference of negligence. Although it has been said in a number of cases, it is misleading to talk of the burden of proofing shifting to the defendant in a res ipsa loquitur situation. The burden of proving negligence rests throughout the case on the plaintiff.

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So in an appropriate case the plaintiff establishes a prima facie case by relying upon the fact of the accident. If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintiff will have proved his case. But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident. Loosely speaking this may be referred to as a burden on the defendant to show he was not negligent, but that only means he produces evidence that is capable of rebutting the prima facie case. Resort to burden of proof is a poor way to decide a case; it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established. In so far as resort is had to the burden of proof the burden remains at the end of the case as it was at the beginning upon the plaintiff to prove that injury was caused by the negligence of the defendants."

Findings:

[16] It was undisputed that at the time of the collision: (1) the Bus was stationary; (2) the Bus was completely within the Bus Shelter; (3) the PLB had no right to be within the boundary of the bus stop bay; and (4) the First Defendant had collided into the rear of the Bus. Under the circumstance, it was not difficult to draw the inference that the Plaintiff had established a prima facie case of negligence against the First Defendant. Mr. Ho had all but conceded that the question to be decided was whether the Defendants had adduced sufficient evidence to rebut that prima facie case.

[17] The Defendants' case depended on two matters: (1) that the Green PLB caused an emergency situation and (2) the First Defendant's reaction to that emergency situation was not negligent.

[18] In his final submission, Mr. Ho stated that the Defendants were entitled to rely on the 4 police statements, given by the PLB's passengers, as proof that the Green PLB had caused an emergency situation.

[19] The testimonies of Mr. Chan Kai Wing and Ms. Chan Ka Yan however, cast a giant shadow on the veracity of these police statements. Both witnesses testified that they did not give any oral statements to the police, but they were given prewritten statements by the police officer in charge, told to read and sign them. In fact at the time of the accident, they did not see any Green PLB cutting in front of the PLB at all. Both of them testified that they had signed their statements without actually reading their contents.

[20] My review of the other two police statements revealed that the contents were virtually identical to Mr. Chan Kai Wing and Ms. Chan Ka Yan's statements. I found that these statements were in fact prewritten by the police officer involved, offered to these witnesses for their signature. They were not the witnesses' account of what happened on the day of the collision and consequently their contents could not be relied upon.

[21] We are then left with the First Defendant's own testimony as the only evidence that a green public light bus had cut across Prince Edward Road from lane 3 directly into lane 1, at high speed and at a sharp angle, thereby created an emergency situation. Mr. Ho suggested that Mr. Poon's testimony that he saw a vehicle passing the Bus on the right just prior to the collision was evidence that the First Defendant's allegation was correct.

[22] Unfortunately, the First Defendant's story needed corroboration of a green public light bus that had: (i) cut across Price Edward Road; (ii) from lane 3 directly into lane 1; (iii) at a sharp angle; and (iv) at high speed. I am afraid that Mr. Poon's testimony was far from what the First Defendant needed to support his story about the Green PLB.

[23] Mr. Chan and Ms. Chan's testimony were also detrimental to the First Defendant's story. The Chans were sitting on the first right side seat, directly behind the First Defendant at the time of the collision. If there was a green public bus that suddenly moved 2 to 3 feet in front of the PLB, one would expect the Chans to have noticed it. Yet, the Chans testified that they had no recollection of any green public light bus prior to the collision. The Chans were totally independent witnesses, without any interest in the outcome of this matter. I found their testimonies completely trustworthy.

[24] As the First Defendant's story of the Green PLB was contradicted by the Chans testimonies. I found that the First Defendant had failed to adduce sufficient evidence to proof that there was an emergency at the relevant time and consequently failed to rebut the prima facie case of negligence established by the Plaintiff.

[25] In any event, even if I held that there was an emergency situation, which is not my holding, the First Defendant must still establish that he had reacted as any prudent and reasonable driver would have done under the circumstance. Whether the First Defendant acted negligently or not depended upon what he did in reaction of that emergency situation.

[26] Citing a passage in Ng Chun Pui, Mr. Ho stated that the First Defendant was placed in a position of peril and emergency and he should not be judged too critically. Lord Griffiths stated in Ng Chun Pui:

"... There was nothing to criticize in the driving of the first defendant before the emergency arose and when the emergency arose the Court of Appeal said:

'At the time he was attempting to extricate himself, his coach and his passengers from a situation which appeared to him - and we would interpose that the judge obviously accepted him as a truthful witness - as a situation of extreme danger. The consequence of his action were in fact unfortunate, but that should not be laid at his door. He did what any careful driver would have done in the circumstances, and we are satisfied that he acted with the alertness, skill and judgment which could reasonably have been expected. Even if he did react slightly more than he should have done, slightly more than was strictly necessary, we are not satisfied that a lesser reaction would not have produced much the same result.'

This approach by the Court of Appeal to the facts of this case cannot be faulted."

[27] The facts of this case was however, substantially different. The First Defendant's testimony was that when the Green PLB suddenly cut in front of him, he was 2 to 3 feet away, his reactions were first to swerve left, second braked hard and then he lost control of the PLB.

[28] The problem was why did the First Defendant swerve left before he braked? The reaction of any reasonably prudent driver would be to brake first. Only when the situation permits and the lane to either right or left is clear of traffics, would he then swerve to another lane to avoid a collision. One must remember that at the relevant time the First Defendant was already traveling in the left most lane. Not far in front of the First Defendant and within the bus stop bay was a stationary double-decker bus. It was simply not safe for him to swerve left into the bus stop bay under the circumstance.

[29] In fact, it was most fortunate that Mr. Poon had just picked up all of the passengers from the bus shelter. If he was not there, the PLB would have plowed into a bus shelter full of passengers. These passengers would then be trapped between the PLB and the railings of the bus shelter. The consequence would have been unimaginable carnage.

[30] Having balanced all of the circumstances, even if the First Defendant had proved that there was an emergency situation, I would still find that he had failed to react, as a reasonably prudent driver should have done under the circumstance. The First Defendant's action of swerving left, without first ensuring that it was safe to do so, was a breach of his duty of care.

[31] The Second Defendant did not dispute vicarious liability, judgment is therefore for the Plaintiff against both Defendants, jointly and severally.

Orders:

(1) Judgment is for the Plaintiff in the sum of HK$90,604.80.

(2) Liability is against both Defendants jointly and severally.

(3) Costs is to the Plaintiff, with certificate for counsel, to be taxed on a Party/Party basis unless agreed.