LIN CHUN YUEN AND ANOTHER v. KWONG KAM CHUEN AND ANOTHER

HCPI 783/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 783 OF 2001

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J U D G M E N T

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1. On 21 September 1998, a little over four years ago, Madam Chong Lai Wa, a 43 year old mother of four children, was standing on the pavement on the north side of Queen's Road East near its junction with Gresson Street. She was waiting to cross Queen's Road East by using the marked pedestrian crossing. The time was approximately 11:40 a.m. It was therefore broad daylight. Suddenly a maxicab - by that I presume is meant a public light bus - green in colour veered from the highway, mounted the pavement, striking the traffic light post, which fell on the lady and killed her.

2. The issue before me is that of liability. Are the Defendants liable in negligence? Prima facie they must be. The public light bus which had been travelling towards the Hopewell Centre left the highway. In the absence of an explanation which rebuts the clear inference of negligence, the first Defendant as servant or agent of the second Defendant will be held solely responsible for this traffic accident. There can be no question of contributory negligence.

3. The writ was issued one day before the expiry of the limitation period. We are only now considering the first issue. The Defence was served on 8 November 2001. Not until 5 June 2002 was it amended to give more detail of the issue which has been tried before me. The contention on behalf of the Defendants is that the first Defendant was in a state of automatism induced by some illness or disease, which deprived him of conscious control of the public light bus. The burden of proof rests upon the Defendants. "Res ipsa loquitur" is a rule of evidence based upon common sense: see Lloyde v. West Midlands Gas Board 1971 1 W.L.R. p.749 (Megaw L.J. at p.755) and Moore v. Fox & Son 1956 1 Q.B. 596. (See also Chan Kwok Ping v. Hop Yick Engineering Company and Able Engineering Company Limited 1997 HKLRD p. 1390).

4. Mr Ruy Barretto S.C. on behalf of the Defendants contended that "res ipsa loquitur" did not apply because the factual matrix of the incident did not raise the "prima facie" inference of negligence on the part of the first Defendant. In so doing he relied upon Ng Chun Pui v. Lee Chuen Tat 1988 2 HKLR p.425 and part of the judgment of Lord Griffiths at page 427. Lord Griffiths was at pains to correct a misunderstanding of "res ipsa loquitur" which has often been erroneously described as a doctrine when in fact it is a Latin maxim describing:

"... a state of the evidence from which it is proper to draw an inference of negligence."

The burden of proof of negligence remains with the Plaintiff throughout the case but that burden may be discharged by "inviting the court to draw the inference that on the balance of probabilities the defendant must have failed to exercise due care, even though the Plaintiff does not know in what particular respects the failure occurred." [Chan Kwok Ping v. Hop Yick Engineering Company & Anor - ibid]

5. Lord Griffiths went on to refer to the classic case of Scott v. London and St. Katherine Docks Co. (1865) 3 H&C 596 and an extract of the judgment of Erle, C.J.:

"... Where... the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the Defendants, that the accident arose from want of care."

Lord Griffiths himself added:

"In an appropriate case the plaintiff establishes a prima facie case by relying upon the fact of the accident. If the defendant adduced 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."

Their Lordships went on to consider and adopt the approaches of Lord Pearson in Henderson v. Henry E Jenkins & Sons and Evans 1970 AC 282 at page 301 and Megaw L.J. in Lloyde v. West Midlands Gas Board 1971 1 W.L.R. 749 at page 755 to which I have already referred. Both approached the position as if the state of the evidence, termed "res ipsa loquitur" occurred in the course of the trial. However part of Megaw L.J. 's judgment synthesises the position on a broader basis:

"It means that a plaintiff prima facie establishes negligence where (i) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident but (ii) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the Plaintiff's safety."

6. Although he said that "evidence as it stands at the relevant times 'can' most conveniently be taken as being at the close of the Plaintiff's case" there are cases where the agreed, unarguable facts give rise to the state of evidence denoted "res ipsa loquitur". In this case those facts were:

1) A bus left the highway, mounted the pavement, knocked down a traffic light pillar at a pedestrian crossing and killed a pedestrian who was on the pavement;

2) In the ordinary course of events buses driven with proper care do not leave the highway in such circumstances.

3) The bus was under the control of the first Defendant as servant or agent of the second Defendant.

They were agreed and unarguable. The only common sense inference was, in the absence of some other explanation, that the Defendants were negligent.

7. Mr Barretto's argument was that since Dr Woo's evidence had been given in the Magistrates Court during the prosecution of the first Defendant, and that two eye-witnesses had given some evidence concerning the surprising movement of the bus towards the pavement, and the impression that the first Defendant was like a "zombie" and appeared not to exercise control over the bus, there were facts which constituted an explanation so as to make "res ipsa loquitur" inapplicable.

8. With all respect to Mr Barretto's attractive argument, these matters of evidence in another court and on paper, do not constitute facts alongside which to measure the validity of "res ipsa loquitur" in this case. They are not yet in evidence in any case and until they become evidence, a civil court is not in a position to evaluate them. Accordingly then the agreed facts call for an explanation by the Defendants. It was on this basis that I acceded to Miss Christina Lee's application that the Defendants should commence by calling their evidence.

9. The first Defendant's evidence was not at all clear in a number of respects. Putting together the relevant parts of his evidence, his medical background was that in 1996 at or about the time of his retirement as a Police Officer, he started to suffer headaches and sought treatment at the family government clinic. The frequency of the headaches was every 2-3 days, and the duration 5-6 hours. They were treated with prescribed medication. On the day of the accident he started his fourth the shift from the Robinson Road terminus. At that time he felt the start of a headache. When he reached Admiralty - probably no more than ten minutes later - he was conscious of the headache. It was not clear whether it had become more intense or more clear or simply maintained the same level but at this stage in his evidence he made what appears to be a significant comment:

"I intended to see a doctor when I got to Marble Road Terminus."

Nonetheless he later said that he would not have done anything on arrival at the Marble Road terminus as the shortage of manpower would not permit him to go off duty.

10. As he approached Gresson Road junction where the accident occurred he experienced what he described as dizziness followed by a form of blackout. He was not aware of anything else until after the accident. He said the total experience lasted some 10 to 20 seconds. The headache continued when he became conscious again.

11. It was important to explore what he was saying about his history of headaches and how it affected his job as a bus-driver. He had had mild headaches before when on duty but he seldom drove when he experienced headaches. He had not considered going to a doctor on those occasions because there was insufficient manpower to replace him if he went off duty. He had not experienced an earlier bout of dizziness or blackout but it had happened once or twice this year.

12. Although he had initially sought treatment at the government family clinic, of late, that is before the accident, he had not gone so frequently to the family clinic but had gone to some other government clinic nearby. By that he meant nearer his present accommodation. He had been prescribed painkillers. Usually he was prescribed enough for several days. Surprisingly, he did not have these painkilling tablets with him when he set out on this particular journey and so had no medication to hand although he said it was his habit to take medication once a headache started. This meant that he had nothing to assist him to cope with the headache if it worsened and became of the nature and duration he described, viz. 5 or 6 hours with pulsations on both sides of his head (bi-temporal). Furthermore, if he was to continue driving, there being no reserve manpower available to replace him, he was risking the continuance of a painful, distracting condition whilst he drove a bus with passengers on the highway.

13. In relation to the most recent blackout he gave a piece of evidence which was a little difficult to believe. He said that its duration was about the same as that which immediately preceded his accident. He was able to calculate this because be could see the time by the clock on the wall when he 'came round'. This means that he must have made a conscious effort to note the time by the clock as he was about to lose consciousness and did the same when he recovered consciousness. I find it difficult to believe that in the circumstances he described that he had made the timing of this blackout such a priority.

14. His evidence as to the onset of the headaches did not accord with what he had told Dr Edmund Woo and Dr Yu Yuk Ling. In June 1999 he said to Dr Woo that he had had recurrent headaches, once or twice a week, lasting some hours, for 5 to 6 years. They were often precipitated by sleep deprivation. He told Dr Yu more or less the same in March 2002 - since 1993 he had recurrent bi-temporal headaches once or twice a week, lasting 1 to 2 hours. He also said that he attended the family clinic once every 1 or 2 months. Migraine had not been diagnosed and he was given only analgesic for symptomatic treatment and also took herbal medication for pain relief.

15. There is no record of the Defendant attending at and being treated by the clinic for headache before the accident. The earliest record of any compliant is on 13 October 1998 about three weeks after the accident. There are no other records available.

16. These matters raise serious questions as to the Defendant's reliability as a witness. Mr Barretto invited me to take note of his current demeanour and I accept that he may well be depressed in the ordinary sense of the terms and somewhat 'flat' in appearance. Of course the traffic event may well have left its mark upon him. It cannot be easy to be reminded of an event in which one was at the controls of a vehicle which left the road and killed a pedestrian. Viewed in isolation, the discrepancy between his evidence as to when the headaches started, and what he told the consultant neurologists, may not be that significant but the overall picture is a starkly conflicting one - years of attendances at and treatment prescribed by a family clinic for a recurrent, frequent, pulsating type of headache of several hours duration with absolutely no record of an attendance at the clinic with a complaint and/or treatment for such a problem. In these circumstances alone I find it difficult to place any reliance upon his evidence.

17. There is no doubt that he was diagnosed as suffering from hypertension on 21 September and the headaches recorded from 13 October 1998 may well be attributable to that state though at that time undiagnosed.

18. It is relevant now to see how he was observed to be by one of his passengers, Madam Leung Wan Yi, who was seated on the nearside of the bus, third seat from the front. She was preparing to alight at the Hopewell Centre. She became aware of a pedestrian standing on the pavement by the traffic light pillar and that the bus on which she was travelling was moving straight towards it without swerving.

19. The driver had both hands on the steering wheel. After the collision "he turned back and asked us whether there was any passenger (she must mean pedestrian) under the vehicle." Then he opened the door and got out of the vehicle. A little later in that statement to a Police Officer, she said of the driver, that it was "just like he was sleeping".

20. She gave evidence in the Magistrates Court when the Defendant was prosecuted. There she added that she and some passengers had shouted "crash", "crash", before the vehicle actually struck the traffic light pillar. There was no preceding vehicle which had any bearing or influence on what had happened. The bus was travelling at a speed of 20 to 30 kph.

21. Outside the bus on Queen's Road East crossing from the north side to the south side, i.e. from Gresson Street side to the St. Francis Street side was an American citizen André Eichman. He was using the pedestrian crossing although the lights were against him. He had reached the central refuge when he noticed the Defendants' minibus coming close to the pavement which he had recently left. Its speed was 20-30 kph. It was about 30 feet away when he first saw it. He says he saw the driver facing the front with his eyes open and mouth closed, with both his hands on the steering wheel. In answer to a question from the Police Officer who took the statement about whether he had "any idea about this accident?" meaning "have you any idea why it happened", given that Mr Eichman appeared to have a spectator's view of what had occurred, he replied:

"The bus driver didn't pay any attention while driving, in my opinion."

22. That in my view is a significant reply. He made this statement at about 3 p.m. on that afternoon, i.e. within 31/2 hours of the accident. What he expressed had all the naturalness and simplicity of the obvious.

23. He too was called to give evidence at the Magistrates Court ten months later. There his evidence took on a more extended form. It was clear that by virtue of his crossing the road against the pedestrian light and having reached the middle of the road he had to take account of traffic coming towards him. His prime concern would therefore be with traffic coming down Queen's Road East in the opposite direction to that in which the Defendants' bus was travelling.

24. The extra evidence was to the effect that the bus looked as if it was coming in for a stop.

"With the same state that he was driving with, he opened the door to let the passengers out."

and,

"He looked like he was gliding in for a landing, not driving."

and,

"He still had the same expression on his face, he just kind of reached over and opened the door."

He repeated this several times.

25. In cross-examination he said in answer to a less than helpful question "He looked more like a zombie......He just had a blank stare.

26. It was clear that Mr Eichman was referring to the impression he had on seeing the driver after the accident. There was a degree of rationalisation in the use of the word "same" to described his blank facial expression i.e. the "same" expression as when he was behind the wheel. Earlier he had said that he had seen him driving with a fixed stare.

27. None of this had appeared in his statement to the Police Officer. I have some difficulty in attributing much if any significance to it. The witness was in the middle of the road mindful of traffic coming from his left. No doubt his attention was distracted by the bus as it moved towards the pavement. I find it difficult to place any reliance upon a description of the expression on the driver's face viewed from that position and with a windscreen in front of the driver. I think Mr Eichman has, quite understandably, related his view of the driver's facial expression when he saw him outside the bus, back to an impression of what his face must have been like whilst at the wheel of the bus as it glided towards and onto the pavement. I have serious doubts as to whether he could have had in the prevailing circumstances, a sufficiently clear view of the driver's facial expression at the time the bus left its normal course to go to the nearside. If he had, and it was so worthy of notice, he would have made some comment at the time he made his written statement and the answer I quoted in particular. In my opinion, he was then saying, the bus driver did not pay any attention when driving.

28. It is the evidence of these two witnesses upon which Mr Barretto relies as providing a picture which Dr Woo regarded as consistent with his explanation for what happened. It is necessary to bear in mind that as far as the history of any headaches is concerned there is a substantial difference between what he was told, what the 1st Defendant said in evidence, and the clinic records.

29. It was on the basis of the medical history that Dr Woo concluded that he may have had "a transient impairment of consciousness for at most a few minutes". In fact it is, at the most, a period of about 20 seconds. The picture as Dr Woo saw it suggested a migrainous aetiology. In fact that picture is now a conflicting one. The last paragraph of his report needs to be examined carefully:

"The difficulty however, lies in ascertaining if the lapse of consciousness on 21 September is a true organic dysfunction due to either aura of a migraine or a transient global amnesia. The uncertainty stems from the extremely short duration of the event; the aura of a migraine usually lasts for about 20 to 30minutes, while transient global amnesia usually last for a few hours. Mr Kwong's lapse of consciousness lasted for minutes only. This was unusual though not impossible."

30. I am unable to place reliance upon the first Defendant's evidence even to the extent of determining the nature of the headaches he said he had over a period unsupported by any records. Dr Woo made it clear in his evidence that uncertainties remained. In my view those uncertainties were increased as the evidence unfolded. Even the period is a matter of seconds not minutes. Although Dr Woo regarded the evidence (in the form of statements to the Police and evidence in the Magistrates Court) of two eye witnesses to the accident as consistent with his possible medical interpretation, I think that evidence in fact falls short of the status accorded to it in argument. I think it is consistent only with a period of inattention either through fatigue or "day dreaming" with the facial expression, noted more reliably after the event, indicating shock and realisation. The driver's actions in opening the door after the accident and inquiring if anyone was under the vehicle were clearly only indicative of awareness immediately of what had happened. As Dr Woo indicated his actions indicated coordinated behaviour. He had had to rely upon what the driver told him.

31. The argument as to whether the driver had, over an unknown period of time, a migrainous type of headache or a tension-type remains open. On the day in question it is not entirely clear what type of headache he had. He was uncertain how he was going to deal with it. At the Tang Shiu Kin Hospital to which he was taken after the accident he was recorded as having a tension-type headache. That was a clinical diagnosis. It must have resulted from the description given by the first Defendant. During the course of the trial, at a late stage, the Defendants' solicitors produced a copy of the admission record of the A & E Department. In it is recorded that he complained of headache and blackout after the accident. There is a further entry "headache today" - a negative in relation to any dizziness (amongst others) a diagnosis of post-concussional syndrome although "no direct trauma" is also recorded and a further entry at 2 p.m. "Claim headache too." Despite the clear reference in the report by the doctor who examined him - Dr Sia Yin-shan - to tension-type headache that diagnosis had been questioned on behalf of the Defendants. What is clear is that there is no reference in the record to the Defendant complaining of the onset of a headache from the time he started his shift i.e. ten minutes or so before the accident. If there had been, I would have expected a specific reference to this and consideration of it, because the notes indicate that the headache was being considered in the context of being caused directly or indirectly by the accident.

32. Dr Woo acknowledged that the time-frame was a difficult aspect in that it did not support his diagnosis. He depended upon the Defendant's reliability and I am satisfied that the latter is in fact unreliable. The short duration of the incident leading to the accident makes it very improbable that he had global amnesia. That leaves aura as Dr Woo's possible explanation. However he acknowledges that in the literature an aura lasts much longer that the 10-20 seconds range.

33. Dr Yu was inclined to place more reliance upon Dr Sia's diagnosis of tension-type headache. He underlined that there was an absence of the other usual features of a migraine type headache. He thought that it was highly improbable that the driver had experienced an aura as a consequence of a migraine attack and that although a migraine followed by an aura was not impossible there was a number of features which militated against it. The distraction of concentration resulting in the accident did not in his view have an organic cause.

34. As far as the driver's history of headaches was concerned he would have expected a general practitioner to record a complaint of migraine-type headaches if the patient was giving the information which the driver says he was giving. The evidence of eye-witnesses as far as it went, was compatible with distraction by other events. Dr Yu made the pertinent comment that we had very little information of what happened at the time by way of distraction.

35. There is no doubt that at the time of his examination and report Dr Woo had some reservations as to the diagnosis of migraine induced aura. The time scale was a contrary feature. When is added to that the uncertainties, not to say confusion, emerging from the driver's own testimony and the absence of supporting evidence, that reservation becomes a significant one re-inforced by Dr Yu's comments. I do not think that on all the evidence this was a migraine aura-induced state of automatism. I think the driver was distracted by some other cause, perhaps even fatigue, or, if he genuinely was experiencing a headache, his preoccupation with it. He was having to delay his lunch break by undertaking a fourth consecutive shift. He may well have been fatigued as a result. He had started work at about 6:45 a.m. He said he had a good night's sleep before he commenced work but sometimes fatigue is the result of an accumulation of sleep deprivation which is not countered by one night of good or reasonable sleep. He had told Dr Woo that his headaches had often been precipitated by sleep deprivation.

36. His reactions after the event showed a degree of awareness not obscured even by the obvious shock at what had happened. Momentary loss of control of a vehicle brought on by such a simple factor as "dozing-off" is a well-known hazard for drivers of public and private vehicles alike. Alternatively if he was truly experiencing a headache, the 'nagging' effect of it may have caused him to close his eyes for a few moments as his concern to ward it off overrode the need to maintain total concentration and control of the bus. These factors are more likely in my judgment to be the generic cause of such an incident. On this basis, as I find, the Defendant has failed to rebut the inference, or, put on the positive basis, the Plaintiff has discharged the burden of proving negligence of the part of the Defendants. One way or another the driver was not fit to be driving for reasons which were not created by a state of automatism. It may be that the Defendant does not need to establish on the balance of probabilities that he was in a state of automatism. It is sufficient to show that he had an impaired degree of consciousness because of a malfunction of his brain. (See Mansfield v. Weetabix Ltd 1998 1 WLR at p. 1266). The condition relied upon is an aura consequent upon a migrainous headache. As I have indicated I reject that as a plausible explanation on the circumstances and facts of this case.

37. The authorities relied upon by Mr Barretto do not, on my findings of fact, assist the Defendants. If the first Defendant was driving with a headache the regular nature and extent of which he understood, assuming for the sake of argument that he did in fact start to experience such a headache when he left the Robinson Road terminus at the start of the fourth shift, a number of other aspects of his evidence has to be taken into account.

38. He said that he had not had that type of headache before when driving although he appeared to contradict this when he said that he had had headaches on some working days. With the frequency he described this must have been the case. He certainly did not suggest that the headaches materialised only after the working day. In fact he said he had had mild ones when on duty on other occasions. He also said at an earlier stage in his evidence that on this occasion he felt the need to see a doctor for treatment of the headache and only the lack of manpower to replace him would prevent this.

39. Towards the end of his cross-examination he said that the headache probably started because his lunch was overdue. By the time he reached Admiralty it was a little more severe.

40. As I have indicated earlier I find his evidence confused, contradictory and unreliable. I am not saying he is a dishonest witness. He may well be doing his honest best. I am sure he is trying to rationalise in his own mind why this traffic accident occurred and it is within the bounds of ordinary human behaviour to seek an explanation that eliminates fault on his part.

41. Mansfield v. Weetabix & Anor 1998 1 WLR 1263 was concerned with a lorry-driver's unawareness that he suffered from a hypoglycaemic state. The fact that the disabling event was not sudden but had affected him gradually causing a number of incidents did not render him liable in negligence if he did not know and could not reasonably have known of this infirmity. The Court of Appeal held in his favour allowing the appeal against a judgment against him.

42. Waugh v. James K Atlan Ltd 1994 2 LLR was also concerned with a lorry driver, in this instance with his death at the wheel from a sudden coronary thrombosis. He was susceptible to gastric attacks which manifested themselves by nausea and vomiting. Otherwise he enjoyed good health. There was no prior indication of any coronary problem. Before he set of on his fatal journey he had a coughing fit followed by vomiting. He was seen to be sweating profusely and belching. He with others had been stacking bags of bone meal, a cloud of dust from which appeared to have precipitated the coughing. When he appeared to be better he drove off. He was seen to be normal in appearance when he left the yard. There was nothing to suggest that he was suffering from any disability when he left. The medical evidence which the judge at trial accepted was to the effect that the driver "would quite reasonably have considered that he had suffered one of those gastric attacks brought on by the offensive smell from the cloud of bone dust and that this would, rapidly pass off leaving him quite fit he drive." The House of Lords upheld the decision of the trial judge and the Inner House of the Court of Session in favour of the lorry driver's employers.

43. As in so many cases these decisions turned on their own facts. If I were to accept this defendant's evidence the picture relevant to the issue is:

He started driving with a headache.

He knew from previous experience that it could last for 5 to 6 hours.

It appeared to be of the pulsating kind from which he had frequently suffered.

He had been prescribed medication for such headaches.

He had no medication with him that day and so had no means of treating it.

It worsened by the time he got to Admiralty.

He intended to see a doctor.

He was driving a public service vehicle with passengers on board.

He could expect to have to deal with other traffic.

Headaches distract and can be aggravated by concentration and every day stresses.

He was taking a risk that his ability to drive safely would be impaired.

44. I have no doubt that on this basis he was or would have been negligent. However the Plaintiff does not need to resort to this consideration. The distraction or momentary unconsciousness which caused this accident resulted from direct negligence as I have examined earlier and not from an infirmity of which he was unaware or could not reasonably have been aware. Accordingly there will be judgment for the Plaintiffs with costs.

45. If it is desired to deal with the question of costs at this stage instead of waiting until quantum has been agreed or assessed, I will assess gross sum costs under Order 62 rule 9(4)(b). Alternatively this can wait until after the assessment. In the event of agreement subject to approval (the youngest dependant child is under 18 years of age), the matter can be raised then.