KWAN GAT YIM v. LEUNG YIU CHO and Another

1995 No. P.I. 489

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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J U D G M E N T

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THE ACCIDENT

1. The undisputed facts are that KWAN Gat-Yim ("the Plaintiff") was injured when the bus being driven by LEUNG Yiu-Cho ("D1") along Ma Tau Chung Road at about 10:30 am on the 10th of June 1992 braked suddenly causing him to fall ("the accident"). The bus (registration CR 2707) was owned by Kowloon Motor bus Company (1933) Limited ("D2"). D2 employed the D1 who was acting in the course of his employment at the time of the accident.

2. The Plaintiff is severely injured being now tetraplegic.

3. The unchallenged evidence of D1 was that a taxi cut in front of the bus causing him to brake which in turn caused the accident.

SCOPE OF THE TRIAL

4. Liability was ordered to be tried separately from quantum (Order of Mr. Justice Cheung dated the 17th of April 1996). By agreement the parties clarified that "liability" was restricted to liability for the accident but did not include causation of the Plaintiff's injuries. I directed that the extent and the cause of the Plaintiff's injuries be determined at the trial relating to quantum.

THE EVIDENCE

5. The Plaintiff was 72 years old at the time of the accident. He gave oral evidence that he was the last to board the bus. He concentrated on getting the exact fare (about HK$2.40) from his purse. When the bus moved off from the stop he told D1 not to start. He had an umbrella on his arm because it was raining. He did not lean against anything while extracting the fare. He said the railings were out of reach. Less than a minute after moving off the bus suddenly braked causing him to fall hitting his chest against the upright metal box for payment of the fare ("the money box") before falling backwards onto the floor. The Plaintiff said he was reasonably fit at the time of the accident.

6. D1 gave oral evidence that he had been driving buses since obtaining his licence in 1983. He was a senior bus driver referred to as a "bus captain". He said that before driving off he looked into a mirror showing the passengers on the lower deck and he made sure that the two doors were closed. He noticed the Plaintiff standing about 3 feet away from the money box. He considered the Plaintiff to be about 65 years old. The Plaintiff was leaning against one of the horizontal rails. He could only see the Plaintiff's back. But he noticed that the Plaintiff had not paid the fare. He denied the Plaintiff's evidence that he told him not to drive off. He said that after travelling about 4 bus lengths (ie. 70 metres) a taxi, without warning, cut in front of the bus causing him to brake. The Plaintiff fell over and was injured. The taxi turned left and was never identified.

7. In addition to the oral evidence of the Plaintiff and D1 both gave evidence in chief in the form of witness statements. The Plaintiff's witness statement was introduced into evidence with the exception of paragraphs 5 to 9 inclusive. D1's witness statement and his supplemental witness statement were introduced into evidence in their entirely. D1 stated that he assumed that the Plaintiff was counting the exact change to pay the fare when the bus suddenly braked.

8. A notice painted outside the bus entrance stated "Please tender exact fare". The money box is fixed directly in front of the windscreen and next to the driver. Three feet back from the money box going into the passenger compartment a yellow line is painted across the floor. A notice above the yellow line stated "No Standing Beyond Yellow Line" [the area between the money box and the yellow line is, for convenience, referred to as "the exclusion zone"]. Railings (both horizontal and vertical) are placed throughout the lower passenger compartment. The speed of the bus is capped at a maximum of 48 k.p.h. Passengers are permitted to stand on the lower deck of the bus.

CREDIBILITY

9. I found the Plaintiff an honest witness. Making allowances for his age, his severe incapacity and the passage of time since the accident I found his evidence reliable.

10. Whilst I did not find D1 to be untruthful I consider that he was influenced by the attempt at a reconstruction of the accident with his employer's accident investigator almost four years after the event (i.e. May 1996). I consider that D1 tried to portray the accident in a light more favourable to himself and to D2. In particular I was not impressed by the way he doubled the distance the bus had travelled from his contemporaneous police statement (35 metres) to his witness statement in May 1996 (70 metres). I found D1's evidence less reliable.

ISSUES OF FACT

11. Important issues of fact which arose from the evidence were:

(1) Did the Plaintiff tell D1 not to drive off?

(2) Where and how was the Plaintiff standing at the time of the accident?

(3) How far had the bus travelled at the time of the accident?

(1) Did the Plaintiff tell D1 not to drive off?

12. In oral evidence the Plaintiff repeated at least 3 times that he told D1 not to start. Counsel for the Defendants urged me to reject this evidence as a recent fabrication because it does not appear in the Plaintiff's police statement taken an hour after the accident but first emerged in his witness statement taken in June 1996. I was impressed by the Plaintiff's evidence in this regard: I believe that he said something to D1 when the bus drove off. The police statement is very brief: it was taken just after the Plaintiff received his injuries. Having considered all that counsel for the Defendants said about the omission I do not consider it material. I find that the Plaintiff, in effect, told D1 not to drive off.

13. The related question is did D1 hear or understand the Plaintiff. The parties agreed that the Plaintiff spoke with a "country accent". I consider it likely that D1 has forgotten whether the Plaintiff spoke. Perhaps he did not fully understand the Plaintiff. The words used by D1 in his supplemental witness statement are significant: "I do not recall the Plaintiff saying anything to me: specifically, I do not recall the Plaintiff asking me not to set the bus in motion ..... " (emphasis added). It is true that in oral evidence D1 was more positive but to the extent that he said that the Plaintiff did not speak to him I find, to the contrary, that the Plaintiff did speak.

(2) Where and how was the Plaintiff standing at the time of the accident?

14. I find that the Plaintiff was standing somewhere between the money box and the area immediately past the yellow line. The Plaintiff said he was next to the money box. D1's oral evidence is to the effect that the Plaintiff was about 3 feet away from the money box. The yellow line is 3 feet from the money box. The effect of this finding is that I am satisfied that the Plaintiff was standing either within or on the very edge of the exclusion zone.

15. The evidence as to how the Plaintiff was standing was disputed at length. In his police statement the Plaintiff said he leant against the iron railing; in his witness statement he corrected this to say he did not lean against the railing; in oral evidence he said he did not lean against anything. D1 made no reference to how the Plaintiff was standing in his police statement; in his witness statement he said the Plaintiff was leaning back against a horizontal railing; he repeated this in oral evidence and he marked the position on photograph 11 in Bundle F. I consider it difficult for both D1 and the Plaintiff to remember and to describe precisely how the Plaintiff was standing at the time of the accident. I consider it likely that the Plaintiff was leaning against a railing but not in the exact location and in the precise manner described by D1. To do what D1 described the Plaintiff would have to lean backwards over the protrusion caused by the black engine cover shown in photograph 11. That would be awkward. I find that the Plaintiff leant against a railing but that it is not possible to determine precisely where and how. The significance of finding that the Plaintiff leant against a railing is that he had taken some steps to secure his balance and that the railings were close at hand.

(3) How far had the bus travelled at the time of the accident?

16. This issue attracted considerable attention in the evidence. The evidence comes almost entirely from D1. In his police statement, recorded about 2 hours after the accident, he said the bus had travelled about 2 bus lengths (ie. 35 metres) when the taxi cut in front. A sketch attached to that statement, drawn by the police officer, supports this. In his witness statement, made in May 1996, D1 changed his evidence to state that the bus had travelled twice as far (ie. 70 metres) when the taxi cut in. In oral evidence he said that the error in his police statement occurred because he was "tense". He said he revisited the scene in May 1996 with D2's accident investigator and decided the distance travelled was 70 metres. In oral evidence the Plaintiff agreed that the bus braked "almost immediately" after driving off; he estimated the time at less than a minute.

17. I prefer the near contemporaneous evidence of D1 in his police statement to the attempt at a reconstruction years after the event with his employer's accident investigator. I find that at the time of the accident the bus had travelled about 2 bus length (ie. 35 metres).

18. The only evidence of the speed of the bus is D1's statement that it was 10 to 15 kilometres per hour ("k.p.h."). Counsel for the parties helpfully submitted tables setting out the time/distance ratio. Applying those tables to my finding that the bus travelled about 35 metres it follows that the time which elapsed from driving off to accident was in a range of 25 to 12.6 seconds. At a speed of 10 k.p.h. (from a stationary start) the time is 25 seconds; at a speed of 20 k.p.h. (from a stationary start) the time is 12.6 seconds. The bus drove off from a stationary start. The significance of the time elapsed is whether the taxi cut in when the bus driving off from the bus stop or whether the taxi cut in when the bus was properly under way.

OTHER CONSIDERATIONS

19. It is not disputed that the Road Users Code ("the Code") applied and that by virtue of Section 109(5) Road Traffic Ordinance (Cap. 374) breach of the Code can be relied on to establish liability. The relevant part of the Code states:

"For Professional Drivers ..... after picking up passengers do not move off until they are properly seated or, if permitted to stand, are able to grasp a secure handrail or hand hold ..... "

20. Reference was made to the Road Traffic (Public Services Vehicles) Regulations and the Public Bus Services Regulations which express, in general terms, the correct conduct of passengers and of drivers. I have considered these when reaching my findings. For convenience the Road Users Code and these regulations are referred to collectively as "the Regulations".

21. In argument the parties advanced competing views about the balance between providing the public with an efficient bus service and protecting the safety of all bus passengers. On the facts of this case it was not necessary to attempt to define this relationship. However to the extent that any commercial pressure on D1 was inconsistent with the Plaintiff's safety I favour the Plaintiff's interests. It is worth noting that public transport is the preferred method of travel for many older people (who for various reasons do not drive). Reference was made to the Senior Citizens Bus Pass (allowing half cost travel to those aged 65 or over). Although not in force at the time of this accident it reflects the reality that older people tend to use public transport.

APPLICATION OF THE FINDINGS OF FACT

Duties owned to the Plaintiff

22. The duties owed by D1 to the Plaintiff arise at common law and under the regulations. At common law carriers of passengers are required to take all reasonable care for their safety: see Halsbury's Laws of England 4th edition (Re-issue) Vol. 5(1) paragraph 499. I was referred a number of cases of which Azzopardi v. State Transport Authority [1982] 30 S.A.S.R. page 434 gives an illustration of these duties applied to a passenger on a bus.

Were the duties owed to the Plaintiff breached?

23. In my judgment D1 was in breach of duties owed to the Plaintiff at common law and under the Regulations by driving away from the bus stop at a time when:

(i) the Plaintiff was either within or on the edge of the exclusion zone;

(ii) he noticed that the Plaintiff had not paid the fare.

24. I find that it is unsafe to drive off when a passenger is close to the exclusion zone and when he is about to pay the fare. The driver should either tell the passenger to get off the bus (and catch the next one when he is ready to "tender exact fare") or he should tell the passenger to move into he passenger compartment and pay later when the bus has stopped again. It is negligent to drive off when an elderly passenger, who has not paid, is standing within or on the very edge of the exclusion zone. It is foreseeable that the passenger may attempt to go back into the zone to put the fare into the money box when the bus is moving. That is dangerous for the driver (because it blocks off part of his nearside vision) and it is dangerous for the passenger (because of the entrance steps and the angled protusion of the metal money box).

25. I also consider that D1 drove off in contravention of the Road Users Code. I find that he could not be satisfied that the Plaintiff was "able to grasp a secure handrail". It would have been easy for D1 to tell the Plaintiff to move inside the bus. He should not have driven off until satisfied that an elderly passenger, like the Plaintiff, was in position to grasp hold if the bus suddenly stopped.

CAUSATION

26. On behalf of the Defendants it was argued that the action of the taxi broke the chain of causation. It was said that when the bus drove off the Plaintiff was well balanced and that he would have come to no harm but for the taxi. It was also argued that D1 reacted reasonably when applying the brakes.

27. The Plaintiff argued that the time between driving off and accident and the distance travelled were so short that the accident occurred during the process of driving away from the bus stop. The Plaintiff also relied on the doctrine res ipsa loquitor and a number of cases were referred to in support. I did not find the facts of these cases particularly helpful. Nor did I consider it necessary to resort to the doctrine of res ipsa loquitor. The cause of the accident and the responsibility for it can be ascertained from the evidence.

28. I find that the actions of the taxi did not brake the chain of causation. The taxi cut in front of the bus 2 bus lengths (35 metres) from the bus stop and within 25 seconds of starting. I find that the accident occurred while the bus was driving off and not when it was properly under way. I also consider that the process of driving off is a more dangerous time (because the bus is rejoining moving traffic) and that the driver should make sure that the passengers are settled.

29. The Plaintiff argued that D1 was negligent in the way he reacted to the taxi. The case of Sutherland v. Glasgow Corporation [1951] S.L.T. 185 was relied on to illustrate how a driver is liable for "over reacting" to a situation which is not a genuine emergency.

30. I do not agree with the Plaintiff's criticism of the way D1 reacted to the manoeuvre of the taxi. The facts in the Sutherland case are distinguishable. A bus driver can assume that a taxi will not cut in whereas a tram driver cannot assume that a frisky terrier dog, running alongside, will not suddenly run in front of the tram. I find that D1 reacted reasonably to the bad driving of the taxi.

31. I find that the cause of the accident was D1 driving off before the Plaintiff was safely in the passenger compartment. The accident occurred during the process of driving off. The sudden braking was of a type foreseeable when driving off. That the Plaintiff should fall over was a natural consequence. In my judgment D1 was negligent and his negligence caused the accident. D1 is liable for the accident. It was accepted by counsel for both Defendants that if D1 was liable then liability would also attach to D2. I hold that D2 is also liable for the accident.

CONTRIBUTORY NEGLIGENCE

32. The Plaintiff has been travelling by bus since soon after he arrived in Hong Kong in the 1950s. I infer that he was familiar with the natural risks of travelling as a standing passenger. Although I have found that he did tell D1 not to drive off I consider that once it was clear that he had been ignored he should have put his purse away and left the exclusion zone to stand in the passenger compartment in such a way as to be able to grasp a railing. I find that the Plaintiff did not take reasonable care of his safety and that his failure contributed to the accident and accordingly to his injury.

33. When deciding the extent of contributory negligence I have regard to the Plaintiff's age. I am satisfied that D1, as bus captain, had greater responsibility for allowing an unsafe situation to exist. I find that the Plaintiff's contributory negligence was 15%. Accordingly I find D1 and D2 are together 85% liable for the accident.

34. I make an order nisi that D1 and D2 pay the Plaintiff's costs to be taxed if not agreed with liberty to all parties to apply.

(Nigel Aiken, Q.C.)

Deputy Judge of the High Court