CHIU KAI YIP v. CITYBUS LTD

HCPI 768/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 768 OF 2002

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J U D G M E N T

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I. Background

1. The Plaintiff was a bus driver employed by the Defendant. He was assigned to the Defendant's bus route nos. 70 and 71. He reported for duty early in the morning of 20 November 1999 at the Defendant's Ocean Park depot. He collected a bus (Fleet No. 732 of "Dennis Dragon" make) ("the bus") which he drove to the Shek Pai Wan terminal.

2. From depot to terminal the bus' front plate read "CTB". At the terminal the Plaintiff had to change the "CTB" designation to the route number and destination. To do this he had to get out of the driver's compartment. The door of the compartment was secured by a bolt to a metal pole ("the pole") next to the fare box. The bolt had to be pulled out to unlatch the door. The bolt was stuck. The Plaintiff had to use force to open the door. Seated in the driver's chair, the Plaintiff pressed against the door with his body and one hand, while simultaneously tugging at the bolt with his other hand. Suddenly, the bolt became unlatched and the door swung open. The Plaintiff fell out of the driver's compartment, hitting his right knee against the pole.

3. Despite the injury to his knee, the Plaintiff managed to drive the bus from Shek Pai Wan to Central Pier station. At the latter he reported his accident to Mr Yip, the regulator on duty. Mr Yip informed the Defendant's Traffic Control Centre ("TCC") which in turn told Mr Wong Kwok Keung ("Wong"), a Senior Inspector then working for the Defendant at Wanchai Pier Bus Terminus.

4. Wong went to Central Pier station to investigate. He saw the Plaintiff. He noticed that the Plaintiff's right knee was swollen and was covered by a protector. The Plaintiff having narrated the events leading to his injury, Wong arranged for an ambulance to take the Plaintiff to Queen Mary Hospital for treatment.

5. Later on the same day, based on what the Plaintiff had told him, Wong prepared a Staff Report. That stated (in translation):-

"On 20th November 1999 at 05:59 hours, I received from the Control Center when I was at Wan Chai Pier, informing me that a bus driver, Chiu Kai Yip, 14852, who was at Central Bus Terminus, alleged that he has sustained injuries. I therefore attended to the scene in order to understand the situation. When I arrived, I saw the bus driver with a swollen right knee covered with a knee protector. I then called the ambulance and conveyed the bus driver to Queen Mary Hospital for medical attention. The bus driver told me that at about 5:10 am, he was driving Fleet No. 732 at Shek Pai Wan Bus Terminus, and when he left the driver's seat in order to change the bus route direction sign to Central, his right knee hit the driver's gate. Initially, he did not feel any pain. Afterwards, when he reached the New Pier, he realized it was swollen and painful and therefore he made a report to the Control Centre. Later, I visited the bus driver at Queen Mary Hospital at about 15:00 hours. The bus driver still stayed in the hospital, E4 No. 23 bed."

6. The Plaintiff himself filled in an Accident Report on 20 November 1999. That states as follows (in translation):-

"I, Chiu Kai Yip reported to work at 0455 in the morning of 20th November 1999 and collected a vehicle. Arrived at Shek Pai Wan Terminus at 0507. At arrival, I was not aware of the fault on the door at the driver's compartment so when I opened the door, I lost balance, slipped and hit my right knee against the 'bar' or between the fare collection box. Further, there was no independent light at the bus driver's compartment and there was insufficient light at the driver's compartment which caused the present work injury. I did not get injured on purpose."

7. Pursuant to the Order of Master Kwan dated 18 June 2003 the Plaintiff's action was set down in the Running List for trial on the question of liability.

II. Discussion

8. The question of liability may be broken down into 3 sub-questions:-

(1) Did the accident happen as the Plaintiff alleges?

(2) Did the Plaintiff contribute in whole or part to his injury?

(3) Was the Plaintiff's injury caused in whole or part by the Defendant's negligence?

A. The accident

9. I am satisfied that the accident took place as summarised in Section I of this Judgment.

10. Mr Wright (appearing for the Defendant) suggests that the accident did not happen on the following principal grounds:-

(1) The Plaintiff's story is incredible. It would have been difficult (if not impossible) for the Plaintiff to have lost his balance while attempting to release the bolt and open the door while seated. In any event, if the Plaintiff had fallen from a seated position as he claims, any injury should have been sustained by his left rather than his right leg.

(2) It is "barely credible" that, having sustained a serious injury to his right knee, the Plaintiff continued to drive and only complained upon reaching Central Pier station. Although the bus was equipped with automatic transmission, the Plaintiff would have had to step on the accelerator and brake with his right leg. How could he have done so if his right knee were injured?

(3) Wong noticed that the Plaintiff was wearing a knee protector. Had the accident occurred as the Plaintiff alleges, there would have been no time or opportunity for the Plaintiff to obtain the protector. Mr Wright submits that:-

"A more credible explanation is that [the Plaintiff] injured his knee at some time before he arrived at work on the morning of 20.11.999 and that the knee support was worn to give relief against that injury."

11. I do not find Mr Wright's grounds compelling.

12. First, I think that it was possible for the Plaintiff to have hit his right knee against the pole.

13. One side of the door ("side A") to the bus driver's compartment, when in a closed position, is held by a bolt to the pole. The other side of the door ("side B") to the compartment is attached to hinges fixed to a vertical bar ("the bar") situated just behind the driver's seat and to the left side (as the driver looks to the front). The door opens by swinging out on the hinges, in the general direction of the back of the bus, once the bolt has been undone. In swinging out, side A traces a semi-circle with the door acting as the radius and the bar as an axis at the centre of the semi-circle.

14. Imagine the door suddenly opening as a result of pressure applied to it by the left side of the seated Plaintiff's body. His body would follow the direction of the semi-circle traced by side A on opening, at least for some part of that arc. This is because the Plaintiff, holding onto the door with one hand, would have initially been attached to the door at the instant of its swinging open. It seems not only conceivable, but likely, that the torque resulting from the Plaintiff's body initially following the semi-circular motion described by side A, would have caused the Plaintiff's right leg (including his knee) to move in the direction of the pole (to which side A had previously been fastened). The right knee would then plausibly have hit the pole next to the fare box.

15. As for the Plaintiff's left leg, that would have been pressed against the door just immediately before it swung open and would most likely have moved along some of the arc described by the door. The torque from the sudden swinging open of the door and the force applied by the Plaintiff to the door could well have had the effect (as the Plaintiff contends) of causing him to lose balance and tumble out of the driver's seat.

16. Second, it is a commonplace of human experience to sustain serious injury without initially realising the fact and to proceed with an activity oblivious to having been hurt. Such activity often exacerbates the harm done. But even then one may only gradually become conscious of pain. It would not be until some time after an accident that one realises that there has been significant injury and feels intense pain. I am unable to conclude from the fact that the Plaintiff managed to drive the bus from Shek Pai Wan terminal to Central Pier station that the Plaintiff's story cannot be believed.

17. Third, the Plaintiff's evidence when cross-examined by Mr Wright on the knee protector observed by Wong was that he had been wearing a protector on each ankle when he went to work on the morning of the accident. The protectors were intended to relieve stress to the ankles from long hours of driving. As a result of the injury, the Plaintiff says that he shifted a protector from his ankle to his right knee. I accept that account. I cannot deduce from the knee protector's presence that the Plaintiff was making up a story or covering a previous injury to his right knee.

18. I note that Mr Wright's suggested explanation for the knee protector contradicts one of his grounds for disbelieving that the accident happened as the Plaintiff contends. If the right knee had been injured before the Plaintiff arrived for work on 20 November 1999, how on Mr Wright's case could the Plaintiff have been able to drive the bus at all, whether from Ocean Park to Shek Pai Wan or Shek Pai Wan to Central. It is not disputed that the Plaintiff drove the bus all the way to Central. On the other hand Wong, the Defendant's own witness, accepts that the right knee was swollen when he saw the Plaintiff at Central. On any account, it must have been possible at least initially for the Plaintiff to drive the bus notwithstanding that he had injured his knee.

19. For the above reasons, I reject Mr Wright's submissions on this 1st sub-question and find that the Plaintiff hurt his right knee as recounted above.

B. Contributory negligence

20. This can be dealt with shortly. Mr Wright suggests that "the effective cause of [the Plaintiff's] injuries was his own failure to exercise care in particular pushing the door too hard causing it to fly open which in turn caused him to lose his balance". But I do not see how the Plaintiff can be faulted for the way in which, having found the bolt to be stuck, he tried to open the door. It would have been difficult to gauge the amount of strength or effort to exert in attempting to prise open the bolt and obtain the release of the door. The mere fact that the Plaintiff applied more force than what (with the benefit of rueful hindsight) turned out to be necessary could not amount to carelessness on his part. I therefore do not find the Plaintiff to have been contributorily negligent.

C. Defendant's negligence

21. The case argued by Mr Shan (appearing for the Plaintiff) as to the Defendant's negligence may be summarised as follows:-

(1) The Defendant had no adequate system for ensuring that the bus was safe. A proper system should have detected that the bolt was defective or the door liable to become stuck, so that the Plaintiff would not have been required to drive the bus with such faulty equipment.

(2) The Defendant welded the bus driver's seat so that it could not slide backwards. A driver would have little room to manoeuvre when seeking to prise open a faulty bolt. The driver would have to exert force to open a stuck door from a cramped sitting position with a foreseeable risk of his losing balance and falling out if (as here) the door should suddenly open. Welding thus made the seat unsafe.

(3) The Defendant's drivers had periodically complained about jammed doors and welded seats. But the Defendant failed to address these complaints.

C.1 Safe system

22. The Defendant relied on the evidence of Mr Chung Man Kwong ("Chung") in support of the contention that at all material times it had in place a proper system for the maintenance of its buses. Chung is and at the relevant time was the Defendant's Service Manager at its Ap Lei Chau depot. Maintenance of the Defendant's Hong Kong Island buses is principally carried out at that depot. Chung was responsible for the general management of the Ap Lei Chau depot.

23. Chung said that the Defendant had 2 primary types of maintenance work on its buses. Chung termed the 1st type of work "corrective maintenance" and the 2nd type "preventive maintenance".

24. "Corrective maintenance" operated thus: Whenever a driver encountered a problem with the proper functioning of his bus, he would report the same to the TCC. The maintenance team would then immediately send out a duty mechanic to that bus' location for inspection. If the relevant bus could still be safely driven, the mechanic would ask the driver to shunt the vehicle to the Ap Lei Chau depot. Otherwise, the mechanic would arrange for a tow truck to take that bus to the depot for further action.

25. "Preventive maintenance" operated thus: Regular maintenance and inspection would be performed on all buses at intervals of approximately 3 weeks¹. An Engineering Officer would prepare an inspection schedule for all buses. The TCC would notify all regulators to arrange for drivers to shunt a relevant bus to the Ap Lei Chau depot for examination in accordance with that schedule. In addition to these inspections, annual maintenance was also performed on each of the Defendant's buses.

26. The bus here was imported from the United Kingdom in 1996. It was registered in Hong Kong on 5 March 1997. At the time of the accident the Defendant had 39 other buses of the same model.

27. On 27 February 1997 the Transport Department ("the TD") approved use of the Dennis Dragon model of which the bus was an example. The Defendant's Engineering Department then sent a sample bus of the Dennis Dragon model which had been approved, to the TD's Test Centre for close examination. The sample bus having passed all tests conducted at the Test Centre, a TD motor vehicle examiner visited the Defendant's Ap Lei Chau depot to check all buses of the model in question, including the bus. Following his check, the examiner issued a Motor Vehicle Certificate of Fitness for the bus. Only after receipt of that certificate was the bus registered and allowed to run on the road.

28. A TD motor vehicle examiner checks the Defendant's buses every year before giving a Certificate of Roadworthiness for each bus inspected. On 3 March 1999 the TD issued a Motor Vehicle Certificate of Roadworthiness in respect of the bus for the year 1999-2000.

29. According to Chung, the bus had its regular maintenance inspections on 4 and 25 November 1999. On each occasion "there was no defect found in the driver's seat or the driver's gate".

30. Although he did not inspect the bus himself on those 2 occasions, Chung produced the reports prepared on both. Relevant extracts (in translation) are as follows:-

(1) 4 November 1999 Inspection:-

A. Monthly Inspection Checklist (Applicable to all Double Decker Bus)

(This form to be completed by QCI)

Item	Inspection Item	Completed
Body
179	Driver door condition	V
Seats
187	Driver seat mounting	V

B. Maintenance of body and paint items

Item	For QCI to fill in	For maintenance worker to fill in after repair	Last Quality Check
	Monthly maintenance of mechanical components	Maintenance Worker No.	QCI No.
9	Driver seat adjustment tight	Grease 10175

Upon completion of repair and reach satisfaction requirement, sign the report for completion.

Mechanic repair worker (signature/no.) : 10175 Mechanic repair worker (signature/no.) : 10600 Mechanic repair worker (signature/no.) :

Quality inspector (signature/ no.) : 2264 Monthly inspection foreman (signature/ no.) : Date 4-11-99

(2) 25 November 1999 Inspection:-

Monthly Inspection Checklist (Applicable to all Double Decker Bus)

(This form to be completed by QCI)

Item	Inspection Item	Completed
Body
179	Driver door condition	V
Seats
187	Driver seat mounting	V

31. In respect of the latter inspection Chung observed:-

"I confirm that during the regular maintenance inspection of the Bus on 25 November 1999 i.e. the regular inspection immediately following the alleged accident, the bus bodyworker had checked the Bus thoroughly and had indicated in the Checklist that both the driver's seat and the driver-cab door were in good working condition..."

32. Chung also noted that apart from its regular maintenance checks on 4 and 25 November 1999 the bus had gone into the Ap Lei Chau depot some 7 times. The following work was then carried out:-

(1) On 5 November 1999: Checked and re-torqued wheel nuts.

(2) On 13 November 1999 (1st time): Repaired "engine high temperature" and "defective indicator light".

(3) On 13 November 1999 (2nd time): Cleaned air-conditioning filters.

(4) On 16 November 1000: Checked and rectified coolant temperature sensor circuit.

(5) On 17 November 1999: Checked and repaired 1 damaged passenger seat cushion.

(6) On 19 November 1999: Checked tyre condition.

(7) On 20 November 1999: Checked and repaired off-side front indicator light.

Chung stated:-

"During those 7 occasions, many drivers and workshop's staff had either driven or tested the said Bus. None of them had ever reported or complained about the driver's seat or the driver-cab door."

33. Wong additionally stated that to his recollection:-

"[T]here were at least 2 other persons who drove the same bus, i.e. Bus Fleet No.732, the same day after the Plaintiff's alleged accident. There were at least 2-3 other persons who drove the same bus the following day. None of those drivers has ever complained of any defect regarding the driver's seat gate or the driver seat."

34. I accept the evidence of Chung and Wong which I have just summarised. The Defendant's system for detecting faults through preventive maintenance and for promptly correcting problems that manifest themselves seems to me reasonable and effective. I do not think that the Defendant's maintenance system can be said to be somehow inadequate or improper from the standpoint of safety.

35. Mr Sham sought to persuade me otherwise. Mr Sham essentially submitted that "how [the Defendant's] system works is by no means clear". In any event, borrowing adjectives from Lord Tomlin's speech in Lord Mayor, Aldermen and Citizens of the City of Manchester v. Markland [1936] AC 360 (at 364), Mr Sham characterised the Defendant's system of maintenance as one of "precarious, unreliable and uncoordinated methods of receiving information". The problem (Mr Sham argued) was that the defendant chose "to rely upon the chance of being kept informed by ... outside means, without taking any precautions on their own part".

36. Mr Sham referred to evidence from Mr Lo Chung Shun ("Lo") in support of his attack on the Defendant's system. Lo worked for the Defendant as a bus driver from 1993 until his resignation in 2003. Lo was a member of the Defendant's "Joint Consultative Committee of the Franchised Bus Affairs" ("the JCC"). The JCC comprises representatives from the Defendant's senior management, maintenance staff, human resources department, business development department and bus drivers. It meets every 3 months and (among other things) discusses matters (including complaints) relating to the welfare of the Defendant's bus drivers.

37. Lo's evidence was to the effect that bus drivers were likely to report major problems to the Defendant's management for immediate corrective work. On the other hand, bus drivers would probably not report minor problems encountered while operating a bus to the management but would simply inform their JCC representative about such matters so that they could be raised in the JCC.

38. In re-examination Mr Sham asked whether Lo regarded a problem with the gate to the driver's compartment as a major or minor problem. Lo said that he would classify a problem with the door as a minor problem.

39. In his Further Submissions Mr Sham reasons from this as follows:-

"According to Lo (who was a driver himself and a driver's representative), if it was a major defect causing immediate danger they would report the defect to the management whereas if it was a minor defect which did not cause immediate danger they would report it to the driver's representative [on the JCC]. Lo further stated that a jammed driver gate (and an unadjustable seat) were considered as minor defect. The JCC meeting would be held every 3 months. That was the evidence regarding the system of reporting defects by drivers.

Is such a system adequate in the circumstances? What happens if the gate becomes faulty between the period of the alleged monthly inspection and the JCC meetings? The driver would then be subjected to the risk of injury until the defect was remedied either at the monthly inspection or immediately after the JCC meeting. That is clearly unsatisfactory.

The fact that nothing was done regarding the driver's gate after the filing of the accident report on 20/11/999 shows quite clearly the deficiency of the system as adopted by D at the time.

What then would be a proper system of reporting? It is not incumbent upon P to show what steps should have been taken by D in this regard.

-- Munkman on Employer's Liability, 13th ed., para. 2.95.

-- Manchester Corporation v. Markland [1936] AC 360.

It is submitted that a daily reporting is necessary and reasonable in the circumstances in that the drivers can be asked to fill in a defect report form at the end of their shifts so that any defects could be remedied fairly quickly and that the drivers (or passengers) would not be subjected to unnecessary risk of injury."

40. I do not accept Mr Sham's logic. If a driver regards a defect as likely to cause harm, he reports the matter to management immediately. If a driver believes that a defect is merely minor and does not report the matter to management for immediate action but instead simply informs his JCC representative, would that not indicate from the viewpoint of an ordinary reasonable person that the defect could not lead to significant foreseeable harm or injury? I fail to see why a driver's decision not to report a matter to his supervisor because he regards the same as minor or trivial, somehow shows that the Defendant has failed to institute a safe system of maintenance.

41. Mr Sham also ignores the fact that the Defendant does not simply depend on a system of fault-reporting by bus drivers. There is also the preventive maintenance system whereby buses are checked at 3-weekly intervals. I do not accept that Lord Tomlin's adjectives in Manchester are apposite to describe the Defendant's system here.

42. More fundamentally, the bolt in question here does not seem to have been subject to any apparent defect at any material time. There is no cogent evidence that prior to 20 November 1999, anyone noticed that the bolt was stuck or capable of becoming stuck. No problem with the door was detected during the 4 November 1999 regular maintenance check of the bus. Even after the accident, according to Wong, drivers operated the bus without noticing any problem with the door to the driver's compartment. The 25 November 1999 regular maintenance check found nothing wrong. It is an unfortunate fact of life that door and bolts can suddenly become stuck, for no apparent reason, despite the existence of thorough inspection systems. Just as mysteriously, bolts become unstuck and to all intents and purposes function normally ever after. The present case appears to me to be just such a case.

43. Mr Sham is critical of the fact that a maintenance inspection was not conducted on the bus immediately after the Plaintiff's accident. I do not think that there is anything in the point. As Wong points out, others drove the bus on the same day following the Plaintiff's accident, but no problem with the bus driver's door manifested itself.

44. Mr Sham put weight on certain statements by the Plaintiff in the course of his examination-in-chief. Mr Sham asked the Plaintiff whether other buses had problems with seats arising from the welding of seats by management. The Plaintiff answered: "Yes." Mr Sham then asked: "How about the problem with the driver seat gate?" The Plaintiff answered: "Yes." Mr Sham did not clarify what the specific problem being referred to was. Instead he asked whether the Defendant knew about the defective seats. The Plaintiff said: "Yes." Asked how the Defendant knew, he answered that the Defendant knew through JCC meetings. Mr Sham asked whether those were meeting in which the Defendant and the drivers representatives met to discuss matters relating to the welfare of drivers. The Plaintiff said: "Yes." Then Mr Sham asked about the driver's gate: "How often do you see such problem?" The Plaintiff replied: "Very often." Again the specific problem was not identified. Instead Mr Sham introduced 3 photos taken by the Plaintiff of the driver's compartment of a different bus.

45. The Plaintiff's photos showed the door to the driver's compartment as secured by a wire to a metal bar next to the fare box. After asking the Plaintiff to describe the contents of the photos and how they came to be taken by the Plaintiff, Mr Sham asked why the door was secured with a wire. The Plaintiff replied that he had often seen this. Mr Sham went on: "If anything was wrong with the door, what would you usually do?". The Plaintiff said that he would report the matter to the inspector at the depot. Mr Sham asked: How long would it take to have that [door] repaired." The Plaintiff replied: "I am not sure."

46. Mr Sham relied on the exchange just summarised as evidence that there were frequent, unheeded complaints by the Defendant's drivers that the doors to their compartments would get stuck. But I do not regard the Plaintiff's testimony as saying what Mr Sham contends. The Plaintiff does not make explicit the nature of the complaints allegedly made in relation to doors to drivers' compartments.

47. The juxtaposition of the Plaintiff's remarks that complaints about the driver's gate were often made with the Plaintiff's evidence on the photos taken by him leads me to believe that, if there were complaints by bus drivers about doors to their compartments, those did not concern the inability to open the doors because bolts had become stuck. It is instead more likely that the complaints involved the opposite problem of doors being too loosely held in place by their bolts. The Plaintiff drew the Court's attention to the use of wire to secure doors to bars next to the fare box. One would use wire in such a way not to make a tightly fastened bolt even tighter but to secure a door which, though latched, was only loosely held in place and so rattled excessively (to a driver's and passengers annoyance) in the course of a journey.

48. When cross-examining the Plaintiff Mr Wright suggested that occasionally the driver's gate would rattle while a bus was moving. The Plaintiff agreed. Mr Wright then asked whether in the Plaintiff's experience some drivers would attempt to stop such rattling by fastening the gate securely by wire. The Plaintiff said: "No." He did not elaborate. Mr Wright asked whether the Plaintiff himself ever used wire to secure a door. The Plaintiff replied in the negative. Nonetheless, despite the Plaintiff's denials, I believe that Mr Wright's suggestion is the more likely explanation for the appearance of the wire in the Plaintiff's photos.

49. Mr Sham briefly canvassed the matter of faulty doors with Lo. Mr Sham asked whether Lo had ever had the experience of not being able to open the driver's door. Lo said: "Yes." Mr Sham asked what the problem had been. Mr Lo said that the lock had been faulty. Mr Sham asked: "How?" Lo replied that sometimes one was unable to open the door, sometimes one needed to use force, sometimes the door simply swung open.

50. The evidence from Lo does not carry Mr Sham's case further. I do not see such evidence as amounting to little more than that Lo had in his 10 odd years as a bus driver with the Defendant encountered problems with faulty doors. The evidence tells me nothing about the frequency with which bolts fastening drivers' doors became stuck, the degree to which (if at all) bus driver's made complaints about overly tight bolts, and the extent to which relevant complaints (if made) went unheeded.

51. Mr Sham argues that I should place no weight on the inspection records produced by Chung. Chung (he says) did not personally carry out the inspections on 4 and 25 November 1999. He cannot therefore speak about what took place on those occasions. Further, the inspection record entries in relation to the driver's door and seat do not spell out what sort of checks were actually carried out on the door and seat. All one has is a tick in the last column of the record to show that an inspection was done. Mr Sham submits that is insufficient.

52. Again I do not think that Mr Sham is right. The Court must look at the totality of a witness' evidence. Chung as Service Manager charged with the general management of the Ap Lei Chau depot where the inspections were carried out, was qualified to speak to what would or would not have been done in the course of a routine check-up. I place weight on his confirmation that on 25 November 1999 the bus door was found to be in good working condition and that prior to that there had been no adverse report in relation to the same.

53. Mr Sham referred me to the judgment of the Court of Appeal in Li Kai Cheong v. Lam Ying Wai (trading as Chi Shing Soldiering Factory) and others, unrep., CACV 140 of 2002, 22 October 2000 (Rogers VP, Le Pichon JA and Stone J). There a plaintiff workman fell from a scaffold which toppled over. That the scaffold had been inspected prior to use was established by the production of a Form 5 certificate "of recent origin". Rogers VP stated:-

"12. It was strongly argued on behalf of the 4th defendant that the judge should also have held that the 3rd and 4th defendants [respectively, sub-contractor and contractor] were not guilty of negligence because there was a latent defect. In my view, this is to misinterpret the judge's judgment. As the Lord Justice-Clerk said [in John Marshall & Son and others v. Russian Oil Products Limited [1938] SC 773] there could be cases where the inference would be drawn that there had been a latent defect. In my view, this is not such a case for the reasons set out below. When the judge used the word latent defect he was clearly using it in a loose sense to mean a defect which had not been determined, rather than a defect which would have been undiscoverable given appropriate care.

13. There had been no examination of the scaffold after the accident. There was therefore no evidence as to what the defect was and in those circumstances unless there was a compelling reason to do so, it would be wrong to hold that there had been a latent defect when the nature of the defect was unknown. Furthermore, where a defendant relies on there being a latent defect, he has to prove that he was not negligent. See Esso Petroleum Co. Ltd. v. Southport Corporation [1956] AC 218 at 242-3 and Charles & Percy on Negligence 10th Ed. at 5-99. In the present case, the Form 5 certificate had been completed by an employee of the 3rd defendant. No evidence was called as to any inspection of the scaffold on the basis of which the certificate had been issued. Without calling any evidence relating to such an inspection the 3rd defendant could not place any reliance upon the certificate, whether with a view to establishing that no defect could have been detected or otherwise. The 4th defendant was in no better position in this regard than the 3rd defendant."

54. Mr Sham submitted that I should reject the inspection records as evidence in the same way that the Court of Appeal was dismissive of the Form 5 certificate in Li Kai Cheong. But the present case is a long way from the situation there. Far from relying on a bald assertion (analogous to a bland statement in a Form 5 certificate) that the bus was inspected on 4 and 25 November 1999, the Defendant has condescended to chapter and verse by producing inspection records particularising what was or was not done on both occasions. There is only so much one can do when one inspects the door to a driver's bus compartment. In my judgment, taken in the context of Chung's evidence as a whole, the inspection records satisfy me that whatever fault there may have been in the bolt to the bus door could not have been spotted through any reasonably careful inspection.

55. Further, fairness requires that if Mr Sham wishes to cast doubt on the accuracy of Chung's statements about the Defendant's inspection of the door, the matter should specifically have been put to Chung in cross-examination. Mr Sham did not do so. Having ascertained from Chung that the actual inspection of the bus on 4 and 25 November 1999 had been conducted by someone else, Mr Sham moved to another topic in his cross-examination. I do not think that amounted to putting the Plaintiff's case fairly to Chung.

56. I doubt that the Court would have been much assisted if the persons who actually inspected the bus were called as witnesses by the Defendant. What could they usefully remember in relation to 2 out of the myriad of inspections which they carried out more than 4 years ago in 1999? On the other hand, given his position, Chung could no doubt have spoken about the procedures which would routinely be carried out in the course of a typical inspection under his general management at the Ap Lei Chau depot. If it was intended to suggest that such inspection was deficient, the case should have been put. Nothing having been put, I believe that the Court can take the inspection records produced by Chung as meaningful evidence.

57. Mr Sham submitted that there was no need to put a case that the inspection records were inadequate evidence of a proper system of maintenance. In support, he cited the following passage from the judgment of Megaw LJ in Ward v. Tesco Stores Ltd. [1976] 1 WLR 810, at 815:-

".... It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault; and to my mind the judge was right in taking that view of the presence of this slippery liquid on the floor of the supermarket in the circumstances of this case: that is, that the defendants knew or should have known that it was a not uncommon occurrence; and that if it should happen, and should not be promptly attended to, it created a serious risk that customers would fall and injure themselves. When the plaintiff has established that, the defendants can still escape from liability. They could escape from liability if they could show that the accident must have happened, or even on balance of probability would have been likely to have happened, even if there had been in existence a proper and adequate system, in relation to the circumstances, to provide for the safety of customers. But if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers. That, in this case, they wholly failed to do. Really the essence of Mr Owen's argument -- and he did not shrink from it -- was: 'Never mind whether we had no system at all: still, as the plaintiff has failed to show that the yoghurt was spilt within a few seconds before the accident, she must fail.' As I have said, in the circumstances of this case, I do not think that the plaintiff, to succeed, had to prove how long it was since the defendants' floor had become slippery."

58. Mr Sham suggested that he need not specifically put a case about the inadequacy of the Defendant's evidence in cross-examination but could hold his thunder until final submission, because the adequacy or otherwise of an employer's work system was a question on which the burden rested on the Defendant and not the Plaintiff. However, the passage from Tesco does not concern the question of what does (or does not) need to be put to a witness in cross-examination. Megaw LJ was describing what one side or the other has to establish to make out a claim or defence (as the case may be) in the course of trial. Putting a case to an appropriate witness is, however, a question of fairness to and not merely a matter of the incidence of the burden of proof.

59. I should add in connection with Tesco that, while the problem with the bolt to the driver's door which the Plaintiff encountered may have been unusual in the sense of being something which one would not ordinarily expect, I am by no means satisfied on the evidence that the bolt becoming stuck in this case was an event which is "more consistent with fault on the part of the defendants than the absence of fault". To the extent that Megaw LJ was suggesting that there was an initial burden on a complainant to establish at least so much on the evidence, the Plaintiff has not convinced me on that point.

60. By reason of the considerations just discussed, I do not believe that the Defendant could reasonably have been expected to foresee the possibility of the Plaintiff's accident. I do not see what more the Defendant could have done (that it did not already do) to prevent the accident.

C.2 Welded seats

61. The Plaintiff's case is that the Defendant welded the driver's seat in the bus so that it could not move backwards and forwards. According to Mr Sham, this meant that the Plaintiff could not slide the driver's seat back to have "sufficient space to manoeuvre (e.g. stand himself up) when getting out of the driver seat". The welding of the seat therefore meant that the bus was unsafe.

62. There are 2 separate mechanisms for adjusting the driver's seat on a Dennis Dragon bus. One mechanism controls the angle at which the backrest reclines. The other mechanism allows a seat to be adjusted forwards and backwards. The 2 mechanisms are independent of each other.

63. The Defendant accepts that, in some buses, the driver's seat has been welded so as to recline permanently at an angle of 5( from vertical position. Chung explains why as follows:-

"Only when the Defendant finds that there is excessive 'freeplay' at the backrest adjustment mechanism of the driver's seat due to wear and tear, the Defendant would change the whole seat frame. Nevertheless, if and only if, the seat frame were out of stock, the Defendant would weld, but only weld, the driver's seat back rest, to an incline of 5 degrees backwards, but still provide adequate comfort and safety to the bus driver, and the driver's seat could still be adjusted forward, backward, upward and downward."

Chung adds that "[o]nce the Defendant receives its order of new seat frame, it would immediately replace the old one".

64. The Defendant denies that the driver's seat of the bus was welded in any way, whether in respect of the inclination of the backrest or the mechanism allowing the seat to slide forwards and backwards. Chung unequivocally states:-

"Furthermore, I confirm that the driver' seat on bus the Plaintiff was driving on the day of the alleged accident has not been welded in any way. I have, myself, visually confirmed on 2 September 2003 that the driver's seat in that bus was not welded in any way and its backrest angle is still adjustable. I believe that the driver's seat frame is still the original one because there is no replacement record can be found at all."

Chung pointed out that the Defendant did not weld seats to render them incapable of being moved forwards or backwards as that would prevent a driver from adjusting the distance of his seat from the accelerator and brake to suit his build. Such welding might consequently cause significant discomfort to a driver operating a bus.

65. The Plaintiff in contrast states:-

"The original design of the seat was such that it would be adjustable, giving the driver more room to manoeuvre. However, due to the wear and tear, such function became faulty and the Defendant would, instead of having the seat replaced, had it welded in a fixed position. The issue was brought forward in several meetings between representatives of the drivers and the management of our employer. In response to such complaint, our employer acknowledged the need to improve the design of the seat but the seat remained faulty."

66. When one consults the minutes of the JCC meetings referred to by the Plaintiff, one sees that the complaints about the driver's seat related to the angle of inclination of the backrest. The complaints did not concern the welding of drivers' seats in such a way as to prevent them from sliding backwards or forwards.

67. The welding of drivers' seats was first raised in the JCC in December 1998. The matter was taken up in later meetings. Extracts from relevant JCC minutes are as follows (in translation):-

(1) Meeting on 14 December 1998

"3. New issues

3.1 Engineering Department

3.1.1 Some staff of route nos. 70 and 1 raised the issue that the driver's seat of some buses were welded and cannot be adjusted and has caused inconvenience. For examples, bus fleet nos.238, 184.

Mr Chung Man Kwong indicated that it was only one of the buses (bus fleet no.238) has the driver's seat welded. The problems of two other buses had been solved. The Engineering Department would follow up on this issue during the monthly inspection."

(2) Meeting of 8 March 1999

"2.1.8 Some staff of route nos. 70 and 1 raised the issue that the driver's seat of some buses were welded and cannot be adjusted and has caused inconvenience. For examples, bus fleet nos.238, 184.

Mr Chung Man Kwong explained that the reclined angle of the seats in bus fleet nos.727, 238, 207, 214 was welded firmly because the gear's teeth in the seat were worn out. The angle had been tested before welding. At present, they are waiting for the provision of components by the agents. Repair work would start as soon as the parts are available."

(3) Meeting of 18 May 1999

"2.1.7 Some staff of route nos. 70 and 1 raised the issue that the driver's seat of some buses were welded and cannot be adjusted and has caused inconvenience. For examples, bus fleet nos.238, 184.

Mr Chung Chak Man [Assistant General Manager - Operations] said that it was just a temporary measure to weld the worn out gear of the driver's seat. As many buses are involved, the problem might get worse. The Engineering Department is therefore looking for a long-term solution, e.g. replacement of new seats."

(4) Meeting of 27 August 1999

"3.1.6 Some staff of route nos. 70 and 1 raised the issue that the driver's seat of some buses were welded and cannot be adjusted and has caused inconvenience. For examples, bus fleet nos.238, 184.

Mr Chung Man Kwong indicated that the driver's seas of a number of buses have been replaced. In mid-September, 30 new seats would be arrived to Hong Kong. The Engineering Department would arrange for replacement immediately. In the long run, however, the Engineering Department considers placing order of made-to-measure gear components with larger teeth."

(5) Meeting of 18 November 1999

"2.1.2 Some staff of route nos. 70 and 1 raised the issue that the driver's seat of some buses were welded and cannot be adjusted and has caused inconvenience. For examples, bus fleet nos. 238, 184.

Mr Chung Man Kwong said 30 driver's seats have been replaced by new ones. Another new batch of seats has also been ordered. There is only little progress about the issue of looking for local manufacturers to manufacture made-to-measure gear components. As the bus drivers suggested welding the seats at a further tilted angle, Mr Chung said that if the bus drivers feel that the angle of the seat is not satisfactory, they should report the case to the company as broken vehicle and the engineering Department would weld the seat at a further tilted angle of 5( during the monthly inspection."

(6) Meeting of 13 March 2000

"2.1.2 Some staff of route nos. 70 and 1 raised the issue that the driver's seat of some buses were welded and cannot be adjusted and has caused inconvenience. For examples, bus fleet nos.238, 184.

Mr Chung Man Kwong said that the seats with damaged gear would still be welded at an angle of 5( backwards. In the long run, they would consider way to improve the mechanical structure of the seats."

(7) Meeting of 20 June 2000

"2.1.8 Some staff of route nos. 70 and 1 raised the issue that the driver's seat of some buses were welded and cannot be adjusted and has caused inconvenience. For examples, bus fleet nos.238, 184.

Mr Lee Tsuen [Engineering Supervisor - Ap Lei Chau Depot] said that the Engineering Department has already placed an order for 30 seat frames and had replaced a batch of seats, and they would continue to place new orders for replacement.

The bus drivers hoped that the replacement seat could be further adjusted to a tilted angle of 100( [from the horizontal] when they are welded."

68. It emerges from the above extracts that the debate over the welding of seats concerned the inclination of the backrest. Even then the Defendant's drivers were not averse to welding, but rather wished their seats (if welded) to be fixed at 10( instead of 5( from a vertical position.

69. When cross-examined by Mr Wright, Lo who attended the JCC meetings seemed evasive. Having taken him through some JCC minutes, Mr Wright suggested that the real complaint was that drivers' seats had been welded so the backrest could not be tilted for the a driver's comfort. Lo simply replied that, for that part of the discussion, he was not present. I do not regard Lo's evidence as compelling me to a different reading of the minutes from that advanced by Mr Wright.

70. Given the JCC minutes, I doubt the accuracy of the Plaintiff's statements to the effect that certain drivers' seats (including that on the bus) were welded so as to be incapable of being moved forwards or backwards. I prefer Chung's evidence on the issue. Accordingly, I find that the driver's seat on the bus was neither welded so that its backrest would be at a fixed angle nor welded so as to be incapable of being adjusted forwards or backwards.

71. I note that, even if I had held in the Plaintiff's favour that his seat on the bus had been fixed so as to be incapable of sliding backwards and forwards, I would have found against the Plaintiff on the question whether such welding caused his accident. I do not think that the ability to move the driver's seat backwards or forwards has any bearing on how one opens the door to the driver's compartment. The Plaintiff's allegation is that, had he been able to move his seat back, he could have stood up and opened the door while standing. He says he would not then have lost his balance when the door suddenly opened. I do not understand that case. The driver's compartment is on a raised platform. The driver's compartment is thus at a higher level than the actual floor of the bus. I do not believe that there would be room for a driver to stand up in his compartment, whether or not the seat could be moved backwards or forwards. The door to the compartment had to be opened from a seated position.

72. Further, even if the driver could stand up, I am not satisfied that opening the door from a standing position would be a more stable manoeuvre than opening the door while seated. The gate to the driver's compartment would come to about thigh level of a standing person. At any rate, it would be below the waist of a standing person. It seems to me that, if he were standing up, a driver would likely have to stoop down somewhat to pull open the bolt on the door. If (while bending) he were exerting force to release the bolt and the door suddenly flew open, there is a risk that he would fall from the compartment to the bus deck outside the compartment. There may be more, not less, chance of serious injury than if he tried to force open the door from a seated position. Thus, I am not convinced that the ability to move the bus driver's seat forwards or backwards is a real issue (in the sense of being potentially causative) in this case.

73. For the above reasons, I reject the Plaintiff's argument that the bus was unsafe and caused his accident because its driver seat had been welded so as not to move forwards or backwards.

C.3 Complaints about the driver's door and seat

74. This issue can be dealt with briefly. From the discussion in Sections II.C.1 and II.C.2 of this Judgment, it is apparent that I am doubtful that complaints were frequently made about bolts to drivers' compartments becoming stuck or that complaints were made at all about drivers' seats being welded so as to be incapable of forward or backward movement. Insofar as complaints were made about the angle of inclination of a bus driver's seat, the JCC minutes show that the Defendant worked hard to resolve the same. I do not think that it can be said that relevant complaints went unheeded by the Defendant.

C.4 Conclusion on Defendant's negligence

75. Given the above, I conclude that the Defendant was not negligent.

III. Conclusion

76. The Defendant is not liable. The Plaintiff's claim is dismissed. I make an Order Nisi that the Defendant is to have its costs of this action, such costs to be taxed if not agreed.