CHU HON LUNG v. CHAN PING FOON

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES LIST NO. 167 OF 1996

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J U D G M E N T

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1. This is a claim for damages for personal injuries, essentially scalding and scarring by boiling water, arising out of an incident when the Plaintiff undid the radiator cap of a Public Light Bus (PLB) and released steam and gushing water. He sues the Defendant whom he alleges carried out certain maintenance and/or repair work on the PLB on the afternoon of the day on which he suffered his injuries, the 26th July 1990.

2. The Plaintiff is now 42 years of age. He obtained a driving licence when he was 19 years old. He worked as an engine electrical technician for HAECO for seven years. He later became a vehicle driver by occupation and started to drive PLBs in 1985 when he obtained his licence, some five years before this incident.

3. In 1990 he hired PLBs on occasions and on the date in question had hired a PLB, Registration No. DA 3732, from a man called Liu Yun Keung who was, it appears, the owner. The Plaintiff hired another driver for the early shift of the day. The vehicle was about 7 years old as appears from the registration record. The owner of the vehicle was responsible for its maintenance and repair. There is no dispute about this. It is an important aspect of the matter. The Plaintiff's affirmation sets out the relationship between the owner of the vehicle and the Defendant, who ran a garage in Hung Hom, in some detail. The Plaintiff's evidence was to the effect that the Defendant had premises, if that is the right word to describe what was probably an "ad hoc" service facility, at the old bus station at Hung Hom. He had more permanent facilities in Walker Street.

4. The person hired by the Plaintiff to drive the earlier shift was Ah Keen. At some stage Ah Keen told the Plaintiff that the vehicle had been taken to the Defendant's premises because of a fault in either the radiator or the hose or both. The Plaintiff's evidence is that the Defendant's premises were regularly used for repairs and maintenance if required to be done whilst the vehicle was in the Hung Hom area. It is not important to this case whether the Defendant's premises were regularly used or not. What is germane is that on this occasion, the Plaintiff says the Defendant's premises were so used.

5. The Defendant admits, whatever may have been admitted or denied on the pleadings, that the vehicle in question was taken to his premises for repair and/or maintenance. The Plaintiff says that when he was told by Ah Keen that the PLB was at the premises, he went there and saw the hose was split and that the radiator had already been removed. The Defendant told him that it would cost about $800 to put right, that the hose pipe was damaged, that there was something wrong with the cooling mechanism, and the radiator had to be replaced.

6. The Plaintiff says that he left a message over the paging system for the owner to the effect of what the Defendant had told him. The Defendant, he said, contacted him on his pager, saying that the job was completed, and accordingly sometime after 5 p.m. he went and collected the vehicle from the Defendant's premises. He saw the radiator in place and the Defendant indicated all was in order.

7. Thereafter he set off on his shift with the PLB. On a number of occasions the engine stalled but each time he was able to get it going again. The temperature gauge was well up. Eventually he reached Kui Kiang Street where the engine finally cut out. He contacted the Defendant. He told him the engine had overheated. He says the Defendant then told him to start the engine and check to see if there was sufficient water in the radiator. He says he did as he was told. As a matter of common sense it seems to me that to start the engine was bad advice if it was given. The obvious step was to check the level of water in the radiator when it had cooled. My view is that an experienced driver would know this as a matter of course.

8. However the Plaintiff says he did do just that - start the engine and then, using a piece of towelling as the radiator was hot, started to take off the radiator cap. The steam and water gushed out and he was scalded.

9. I asked the Plaintiff a number of questions as to his experience and knowledge of radiators and engines overheating. I am bound to say that, despite his experience of over 20 years as a driver he seemed very naive. Yet he seemed to know that if radiators overheated the cap should be removed carefully and only after a cooling period. He had also sprayed water on the radiator before he tried to remove the cap. He must therefore have known that it was advisable to cool the radiator before removing the cap. Although there were a number of inconsistent answers I am satisfied that he knew water in the radiator would be very hot, that it was necessary to ease the radiator cap gradually and that pressure would have built up with the inadequate amount of water in the radiator.

10. Although, understandably, the Plaintiff was not too sure on specific dates, he stated that since this incident, he had visited and used the Defendant's services on a number of occasions, the last time as recent as early 1995 by which time of course, these proceedings were well under way. He had, he said, no cause to complain about the quality of the Defendant's work on these occasions. It is somewhat surprising that he did not, on any of these occasions, mention to the Defendant anything about the circumstances under which he was burned, or the incident at all. His evidence has not been challenged on this particular aspect and therefore in view of what the Defendant says about the owner of the PLB telling him at the end of 1990 that the driver had been scalded, it may be surprising that neither spoke to the other concerning the matter. As far as the Defendant recalls he has no recognition of the Plaintiff.

11. This then is the Plaintiff's case: negligent repair work and negligent instruction which caused him to be injured when he opened the radiator cap.

12. The Defendant's case is in equally short compass. Although it is admitted that the PLB was taken to the Defendant's premises at the bus station at Hung Hom with a complaint that the water temperature was high, the Defendant says that there was no evidence of a water leakage but that there may have been a blockage in the radiator. He says he left a message on the owner's paging number advising that the radiator had to be replaced and asking for instructions. He never received any, so no work was done. No parts were dismantled or disconnected.

13. At some stage the vehicle was collected by a driver - the Plaintiff, and the Defendant claims that he informed the driver that the radiator had not been fixed, the water temperature would remain high and he told him to take care.

14. I think that it is highly likely in all these circumstances, particularly the lapse of time, that the Defendant is saying what he believed he would have said in that situation, rather than actually recollecting the specific incident. Given that this must have been but one incident of a vehicle not in fact being attended to, over a six-year period, I think it is highly unlikely that he can actually remember such a conversation.

15. The Defendant's recollection of his business relationship with the owner is that he carried out smaller jobs for him on PLBs but for the larger jobs the owner would go elsewhere. On the general scene he said he dealt with 20 to 30 PLBs per day.

16. His advice, he says, if told the engine was overheating, would be, not to open the radiator cap, to check the fan belt and in any event to let the radiator cool down for two hours. Then the cap should be undone with care to see if there was any water inside. I think the two hour wait would have been a counsel of perfection and unlikely but in general his advice was consistent with the understanding of any prudent motorist. That is not to say that there are not times, when under pressure of time, the prudent motorist acts less than prudently and acts precipitately.

17. Not surprisingly, he says that when he received the letter of the 6th April 1994 from the Legal Aid Department on behalf of the Plaintiff, the name of Liu did not mean anything to him - he knew him by a nickname it transpired - nor did the registration number of the vehicle mean anything to him.

18. He gave some evidence of the likely cost of repair which varied according to whether a new or reconditioned radiator was supplied.

19. The cost of supplying and fitting a reconditioned radiator ($800) accorded with the Plaintiff's recollection of what he was told by the Defendant.

20. There was some concentration on the telephone numbers of his premises in Hung Hom - he used the telephone call box available to the PLB service for the benefit of the temporary premises he had at the bus terminus. I do not think this aspect has any great significance as will appear later. The other feature which took up some attention was the radiator cap on the PLB in question. The Defendant said he recollected that the radiator cap on the PLB was of the nature demonstrated by the new radiator cap produced as an exhibit. It may have been but I doubt the ability of anyone to say with certainty that, looking at either of the radiator caps in Exhibit D4, it was one of these. However common sense and ordinary experience dictate that in this age, as in 1990, radiator caps would have carried some warning to the effect that they should be removed with care and slowly - perhaps even advice to the effect that some element of danger existed if the radiator was hot. This is, of no real significance in the light of the Plaintiff's own understanding.

21. I am satisfied that both Plaintiff and Defendant have done their best to tell the truth but where they conflict on crucial matters I have had to decide who I consider is more accurate in his recollection.

22. I think that the Defendant's evidence, to the effect that work was not carried out on the PLB, for the reason he gives, is the more likely. The problem manifested itself very soon after the Plaintiff collected the vehicle and drove off. That problem indicated either that the work had not been done, or that it had been done negligently. I think the former more likely. The Defendant struck me as a person who would have ensured that the necessary work would have been carried out had he been instructed to do so. The Plaintiff himself says that he continued to take vehicles to him for repair and maintenance and that he had no reason to fault him. Furthermore on none of these subsequent visits had he taxed him with an allegation of negligent work (or advice) which had led to his injury.

23. As far as any conversation between the Plaintiff and the Defendant is concerned there is room for misunderstanding. I do not accept that the Defendant told him that "it was fixed" - i.e. that the defect or problem had been cured. The Defendant may well have told him to take care. That would be sensible advice on the basis that repairs had not been carried out. He may have said it was "not fixed" - hence the need to take care. The fact that the problem manifested itself so quickly and frequently before the bus finally came to a halt must have told the Plaintiff that the fault persisted. Again the Plaintiff's silence as to any fault on the part of the Defendant in his subsequent contact with him, inferentially, lends support to this.

24. If there was no negligence on the part of the Defendant in relation to the vehicle i.e. no repairs from which any potential negligence could flow, what is the position concerning the Plaintiff's telephone call to the Defendant after the vehicle had finally stalled in Hung Wan. He may well have telephoned the Defendant but I am sure that whatever the conversation the Defendant did not say "start the engine and check to see if there was sufficient water in the radiator". That defies common sense and it may well be that the Plaintiff as a result of the extreme pain and shock he experienced has unwittingly distorted what he heard.

25. It is right that I should deal with Mr. Bharwaney's arguments on the basis that, had I found negligence on the part of the Defendant in carrying out the repairs, such negligence was directly causative of the Plaintiff's injuries. He relies upon the principles enunciated in Malfrest & Anor. v. Noxal Ltd. [1935] 51 TLR p.551 and Stenness v. Hancock [1939] 2 AER 578. In both cases negligence in fitting and repair had been the direct and proximate cause of injury and the fitter/repairer were held liable in negligence. But on these facts, even if the Defendant had carried out repairs negligently they were not causative of the Plaintiff's injury. Quite apart from the fact that there is no evidence as to what any negligence in the repair and/or maintenance was - all that was known was that the problem of overheating had not been cured, - the Plaintiff well knew that it had not been cured, that the radiator and/or engine were overheating, that there was probably inadequate water in the radiator and nonetheless he opened the radiator cap when everything told him it was risky so to do. For a man who was so badly and painfully burned, I regret to have to say that on either version he was the author of his own misfortune.

26. The only other points on the law on the which I need to comment is that this is certainly not a case where the maxims "res ipsa loquitur" or "volenti non fit injuria" are applicable.

27. The Plaintiff's claim fails and therefore there must be judgment for the Defendant. The Plaintiff is legally aided. I do not know if the Defendant has been represented by his insurance company or whether he had had to bear the costs himself. If the latter, he should in my view have his costs borne by the Legal Aid fund. If the former there should be an order for costs not to be enforced without the leave of the Court. For present purposes I make an order nisi that the Plaintiff do pay the Defendant's costs, to be taxed if not agreed, and that the Plaintiff's own costs be taxed under the Legal Aid and Advice Ordinance.