TSUI PIU v. HONG KONG TRAMWAYS LTD

HCPI 486/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 486 OF 2008

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D E C I S I O N

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1.  This is an application to set aside a default judgment.  This is a regular judgment.  The defendant therefore has to show a real prospect of a success at the trial.

2.  The plaintiff was a tram driver.  He had been so employed for 15 years before he was injured in the afternoon of 30 July 2005.  He was injured when he was driving a tram and approaching a stop near the Legislative Council Building in Central. 

3.  It is the defendant’s case that the plaintiff had told the police that he was injured because the driver’s seat was not flat and had fallen down.  As a result, he was thrust forward and he knocked against something which injured his patella. 

4.  After the accident the plaintiff was sent to a hospital.  The tram was driven back to the depot by the defendant’s chief motorman, Mr Fung Bo Wai.

5.  The driver’s seat was a foldable one and there was a slanted tubular support at its bottom.  The support could be inserted into one of several grooves of different height.  If it was inserted into the top groove, it would support the seat in a horizontal manner.  If it was inserted into one of the lower grooves, the seat would slant downward with the front being at a lower position.

6.  After the tram was driven back to the depot, the defendant’s traffic controller, Mr Kwan Wai Kei, inspected the driver’s seat.  He found a paper roll resting in the top groove.  He told Mr Fung about it.  He also took some photograph of it and took the paper roll away.  He then asked Mr Fung to write a report about it and Fung duly did so. 

7.  The defendant says that the accident happened because the paper roll was sitting inside the top groove thereby displacing the support bar from the groove.  The bar was displaced to an insecure position which was closer to the edge of the groove.  When the bar fell over the edge of the groove, the seat collapsed and the plaintiff was injured.  The defendant therefore said that the accident happened because the support bar had been displaced by the paper roll.  The defendant further said that the accident happened because of the negligence of the plaintiff as he had failed to properly check the seat, and hence failed to discover the paper roll.  Alternatively, the paper roll was put there by the plaintiff and this caused the accident.

8.  The plaintiff denied knowledge of the existence of the paper roll.  Whether the paper roll was in the top groove at the time of the accident is in dispute.  There does not appear to be any motive for Mr Kwan to have planted the paper roll there when he inspected the seat at the depot.

9.  The plaintiff also said that when he took control of the tram at a tram stop, he had very little time to check out everything.  The tram was full of passengers and had to continue moving.  He seemed to suggest that there was not enough time for him to check whether the seat was properly secured.

10.  He also said that he was not injured by the seat collapsing but by the seat slipping down from the inner edge of the top groove adjacent to the wall into the groove itself.  He therefore said that whether the paper roll was inside the groove was neither here nor there as that did not cause the accident.

11.  However, whether the falling of the support bar by half to one inch into the groove would have produced the thrusting that threw the plaintiff forward and injured him is a matter that warrants investigation.  In fact, the defendant disputes this version of how the accident had happened and maintains that the support bar had fallen out of the groove and the seat collapsed.

12.  The plaintiff also made the point that Mr Fung, being the chief motorman, also did not check the seat when he took control of the tram and drove it back to the depot; otherwise he would have discovered the paper roll.  This is certainly a point for consideration of whether the plaintiff had been negligent if he had not checked the seat properly and the accident were indeed caused by the existence of the paper roll in the groove.  But I cannot decide in favour of the plaintiff without hearing all the evidence on how the drivers were trained, what would they do when taking control of a tram in the course of the tram’s journey and why Mr Fung did not do the checking in this instance.

13.  The above discussion shows that there are a number of disputes between the parties.  I am of the view that the defendant has shown a real prospect of success at the trial.  I would therefore allow the application to set aside the default judgment.

14.  The defendant has taken 50 days before acting.  The solicitors have also taken a relatively long period of 21 days to launch the application.  The application is also untidy.  I think it is justifiable for the plaintiff to oppose it, and I therefore order the costs of this application including today’s costs be to the plaintiff in any event.  My costs order would include the costs reserved this morning.  That is the cost of the summons for introducing the second affirmation.