LEUNG LAI CHUN v. MTR CORPORATION LTD

DCPI 1707/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1707 OF 2014

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JUDGMENT

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INTRODUCTION

1.  This is a personal injury claim brought by the plaintiff following an accident on a public bus run by the defendant whereby the plaintiff alleged that her right foot was “grasped” (sic) by the opening door of the bus.

BACKGROUND

2.  On 9 August 2011, at about 1:00 pm, the plaintiff was a passenger on board of a K51 shuttle service run by the defendant from Fu Tai Estate to Tai Lam.  Mr Yau Chi Wan (“Mr Yau”) was the driver of the bus.  The plaintiff suffered an injury to her right foot while she was alighting from the bus at a bus stop outside of Eldo Court.  There is no dispute that her foot was trapped by the opening rear door behind the yellow warning line painted on the floor of the bus.  There is also no dispute that there were 2 clear signs posted by the sides of the door to request passengers to “Please stand behind the yellow line” (「請勿超越黃綫」).   

3.  The main dispute concentrates on whether the bus driver applied the brake in an abrupt manner, causing her to fall forward while she was standing near the exit preparing to alight from the bus.  The plaintiff’s case is that the bus driver did but she managed to balance herself by putting the right foot alongside the door of the bus behind the yellow line.  The plaintiff alleges that because the driver immediately opened the bus door, it trapped her right foot under the door and thereby causing the injury.  The plaintiff’s case is that the accident was caused by the negligence of the driver due to the abrupt braking and opening of the door immediately without regard of her safety, of which the defendant is vicariously liable in the capacity of the bus driver’s employer. 

4.  The defendant denies the plaintiff’s claim.  Mr Yau, the driver of the bus, gave a completely different account.  He claims that he was driving the bus at a normal speed when pulling into the bus stop at Eldo Court.  There was no sudden reduction of speed or abrupt braking which would cause the plaintiff to lose her balance.  He also claims that he only opened the rear door after the bus had come to a complete stop.  It would take 1 to 2 seconds for the door to open.  It was only after a number of passengers had alighted from the bus that he was alerted by other passengers of the plaintiff’s condition.  Upon seeing the plaintiff’s condition, he closed the door in order to release the plaintiff’s foot.  It is the defendant’s case that the plaintiff has failed to heed the warning sign of not standing beyond the yellow line and by putting her foot in the path of the opening door.

DISCUSSION

5.  On the issue of liability, the issue falls upon the court to decide is how the accident happened.  Simply put, whether it happened in the way the plaintiff has described or Mr Yau has described.

6.  On the issue of quantum, on the assumption that the plaintiff is able to establish liability, the issues which the court have to decide include whether the plaintiff has sustained injuries as serious as those alleged by her and what would be the appropriate amount of damages in view of the evidence produced.

Liability

7.  The plaintiff is the only witness who gave evidence in support of her case. She did not call any other witness.

8.  The defendant has called Mr Yau, the driver of the bus, to give evidence on its behalf.  He is the defendant’s only witness. 

9.  Before discussing the evidence given by the plaintiff and Mr Yau, I would like to reiterate the principles laid down by Deputy Judge Thomas Au (as he then was) in the case of Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at §53 for assessing the credibility of a witness:-

“In assessing the credibility of a party’s case on a particular issue, I accept the submissions …… that the court should take into consideration the following:

(a)  whether the party’s case is inherently plausible or implausible;

(b)  whether the party’s cases, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(c)  where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of overall credibility; and

(d)  the demeanour of the witnesses.”

10.  I shall bear the above principles in mind when assessing the evidence of the plaintiff and Mr Yau in this case. 

11.  In her witness statement, the plaintiff states that she was travelling on the K51 bus from Fu Tai Estate to Sun Hui in Tuen Mun.  While the bus was approaching Eldo Court, she approached the rear door with a view to alight from the bus.  She claims that all this time she was holding onto the handrail. When the bus was about to pull into the bus stop, which is a lay-by, she felt that the driver has suddenly applied the brake in an abrupt manner.  This caused her to fall forward.  She claims that as she was holding onto the handrail, she managed not to fall onto the floor.  However, her right foot was forced to move one step forward to the side of the door and beyond the yellow line.  The plaintiff further claims that the driver did not notice her condition and proceeded to open the rear door to allow the passengers to alight from the vehicle, causing her right foot to be trapped by the door.

12.  When she came to court to give evidence, the plaintiff has apparently tried to embellish her story by adding several new features to the accident.  I note that these new features had never been mentioned in her witness statement or pleadings before.  For example, she mentioned in evidence that the speed of the bus was at a modest level  (「速度適中」) when it arrived at the traffic lights just before the bus stop.  However, when the bus went into the lay-by, she described its speed was a little bit faster (「快咗少少」).  She further stated, for the first time in court, that the sudden pick up of the speed of the bus was due to the presence of a truck which was unloading at the lay-by at the time.  She added that the unloading truck had prevented the bus to pull into the bus lay-by completely.   Due to the presence of the unloading truck, the plaintiff alleges that the bus driver had to brake sharply (「猛力」) as stated in the witness statement or rapidly (「急速」) as stated in her oral evidence.  According to her, that was the reason why she had lost her balance and needed to take a step forward. In doing so, she claims that she injured her right foot when the bus door trapped it underneath.

13.  I consider that the accounts given by the plaintiff – both in her witness statement as well as by way of oral evidence in court -- are inherently implausible for the following reasons:-

(1)  The presence of an unloading truck obstructing the bus lay-by had never been mentioned in the pleadings and in her witness statement.  This matter was mentioned for the first time in court some 5 years after the accident.  In my judgment, if this happened, it would be unthinkable that such material matter would not be mentioned in the statement of claim as well as in her witness statement.

(2)  I do not see how the presence of a stationary lorry which was allegedly unloading at the time, even if it existed (of which I do not believe it did), would somehow have caused the bus to suddenly apply its brake when pulling in the bus stop.

(3)  Mr Yau mentioned that a few passengers had already got off the bus safely when other passengers alerted him of the accident.  In my view, it is most improbable that other passengers would not have fallen down or lost their balance had the bus braked abruptly as the plaintiff alleges. Yet there was no mention by the plaintiff or Mr Yau of other passengers losing their balance inside the bus.

(4)  The plaintiff also mentioned in court for the first time when she gave evidence that some passengers have to remove a screw from underneath the door in order to free her foot after the accident.  She also alleges that the door could not be shut after the accident.  She pointed out by reference to a photograph in the trial bundle [TB/60/photo1] that the screw was at the underside of the bus door where the dust brush was located.  In my view, it is simply implausible that the passengers of the bus would take on themselves to remove a screw underneath the bus door when the driver was available to do so.  Further, it is more implausible that such important matter had never found its way in the plaintiff’s pleadings and witness statement.

(5)  In evidence, Mr Yau stated that he was driving at the speed on average at 20 km/hr because there were 4 set of traffic lights in between where the plaintiff boarded the bus in Cheng Choi Street and where she intended to alight at Eldo Court.  Further, the bus had to travel down slope before reaching at the traffic light just ahead the Eldo Court bus lay-by.  There was a set of traffic lights before the slope and another set of traffic light after the slope.  Under such environment, I accept Mr Yau’s evidence that he could not travel at a fast or rapid speed as alleged by the plaintiff.  Further, I accept that he had stopped the bus before the traffic light just before Eldo Court.  As there was a short distance of about 3 to 4 bus lengths only from the traffic light to the bus stop, in my view, it was improbable that the bus would be able to gather any speed at all for it to make an abrupt brake.

(6)  Last but not the least, it was also improbable that she would not have complained to the bus driver of his poor driving immediately after the accident.  Her evidence given in court that she had only scolded the driver while in the ambulance in front of the ambulanceman is equally improbable.

14.  In my judgment, the plaintiff’s case has also been contradicted by other undisputed or indisputable evidence in the material way in the following manner:-

(1)  It is not disputed that police and ambulance service was called and attended the scene soon after the accident.  It is also not disputed that, after investigation, the police decided that this case did not involve any traffic offence and no action was taken against the bus driver.  What is incredible about the plaintiff’s version of events is that she did not complain about the cause of her injury to at least 4 set of different people in authority on the day of the accident itself.  They included Mr Yau (the driver of the bus), the representative(s) of the bus company, the police and the ambulance crew.  Her evidence in court stating that she had only “scolded” the bus driver in front of the ambulancemen while on her way to the hospital after the “severe pain” suffered by her is simply unbelievable.  Given the fact that she had already settled down for a while before the police arrived the scene, in my view, there is no reason why the plaintiff could not have mentioned to the police officers that the accident was allegedly caused by the abrupt reduction of speed and braking of the bus.  In my judgment, the fact that she had not mentioned it at the time most likely means that the accident did not happen in that way at all.

(2)  It is not disputed that the bus driver could only open the rear door of the bus by pressing a switch at the control panel after the bus has come to a complete stop.  Further, it is not disputed that it would take 1 to 2 seconds after the bus comes to a complete stop before the door would open.  The plaintiff in her evidence claims that, after the sudden braking of the bus, her right foot stepped forward by one step beyond the yellow line and was trapped by the door when it was immediately opened by the bus driver.  However, this would be inconsistent with the undisputed or indisputable fact that it would take 1 to 2 seconds for the door to open before her foot would be trapped by the opening door.  This is also inconsistent with her own evidence when she says that 1 to 2 seconds would be sufficient time for her to retract her foot from behind the yellow line.  In my judgment, if the bus had in fact made an abrupt or sudden brake (which I do not accept), there would be more than sufficient time for the plaintiff to notice where her right foot was placed and to withdraw her foot in time before the bus door was opened by the driver, something which the plaintiff has agreed with the defendant’s counsel under cross-examination.  Hence, I would reject the plaintiff’s claim that the bus door opened immediately after it suddenly braked to a complete stop. 

15.  Given the fact that the plaintiff has been discredited over several material matters which she gave evidence on, in my judgment, her overall credibility must be put in doubt. Hence, I have no hesitation in rejecting her evidence.

16.  When compared with the plaintiff’s evidence, I find the evidence given by Mr Yau as plausible, consistent with the contents of his witness statement and without exaggeration or embellishment like the plaintiff.

17.  Mr Yau told the court that he was doing an average of 20 km/hr while the bus was travelling from Cheng Choi Street to Eldo Court. There were a total of 4 set of traffic lights in between those 2 points.  Just before reaching Eldo Court, the bus was travelling downslope.  There was a set of traffic lights before the slope and another set of traffic lights after the slope.  He told the court that he was not going fast while coming down the slope.  After coming down the slope, he stopped the bus before the traffic lights in front of Eldo Court.  Then he drove on level ground in order to reach to the bus stop.  There was only a short distance, approximately of 3 to 4 bus lengths, from the traffic light to the bus stop.  There was no lorry parked at the lay-by trying to unload goods.  He was able to drive the bus into the lay-by completely.

18.  I accept Mr Yau’s evidence and do not see how he could have picked up speed in between the last set of traffic lights and the bus stop outside Eldo Court, given the short distance involved.  Further, there is simply no reason for him to apply the brake in a sudden or abrupt manner as alleged by the plaintiff.

19.  I also reject the plaintiff’s counsel submission that the driver should have looked at the fish eye mirror in order to detect the plaintiff’s presence and to avoid the accident.  There are a number of problems with this submission. First, it was not a matter pleaded by the plaintiff as one of the particulars of negligence.  Second, there was no request for inspection of the bus, no request for interrogatories as to whether one was fitted on this particular bus and no request of discovery for photographs showing the position of the fish eye mirror.  Thrid, Mr Yau himself could not remember if a fish eye mirror was fitted to this particular bus.  Hence, there is no evidence that such mirror actually existed on this particularly bus or not.  Fourth, the plaintiff himself accepted in evidence that the driver could not see her as she stood by the rear doors waiting to alight from the bus.  She admitted that there were a couple of passengers standing in between the driver and her in the aisle. Thus, the driver would not be able to see her as she stood by the door waiting to alight from the bus.  Mr Yau himself said that even if a fish mirror was fixed on the bus, the most he could see through his rear mirror was the movement of passengers. He certainly would not be able to see whether the plaintiff’s right foot had stepped behind the yellow line.  

20.  The plaintiff’s counsel put to Mr Yau that the safest way to open the rear door was to stop and look at the centre rear view mirror to check on the passengers before opening it. Mr Yau agreed to the suggestion.  In fact, Mr Yau went further to say that not only a driver has to check the rear view mirror at the centre all the time, particularly when alighting passengers, he also has to check the mirrors on both sides of the bus at all times.  The fish eye mirror is used to check on alighting passengers (if one was available).  This was the manner in which Mr Yau drove the bus on the day of the accident.  I do not see any negligence lies with that.

21.  Lastly, though by no means the most significant matter in the assessment of the credibility of a witness, I find the plaintiff’s demeanour when giving evidence does not match with that of an honest and credible witness.  She was argumentative and prepared to exaggerate.  Whenever she could not answer a question under cross-examination, she would try to ask the defendant’s counsel a question instead.  She was also prepared to adorn her case with new features which she had never mentioned before.  When challenged, she could not come up with any satisfactory explanations and became agitated.  I find such demeanour does not match with that of an honest and reliable witness.

22.  On the other hand, I find Mr Yau a straightforward and honest witness. He was careful and measured when giving his answers, not too eager to offer an explanation or jumping to conclusions.  Despite having been cross-examined at length by the plaintiff’s counsel, his evidence remains cogent and intact.  What impressed me most is that the plaintiff had been a bus driver since 1990 until his retirement in 2016 but had never been prosecuted for any traffic offence due to an accident. This shows that Mr Yau was an extremely careful bus driver over the years.  He has now retired completely from the defendant, having worked for a few more years for the defendant on a part-time basis after he had reached 60 in 2012. He has nothing to gain by coming to court to give evidence as he did not need to curry favours with his former employer.        

23.  In my judgment, the accident happened when the plaintiff failed to pay attention to her own safety by placing her right foot behind the yellow line.  I find there was no speeding of the bus when approaching the bus stop; no lorry parked at the lay-by unloading goods; no sudden or abrupt braking of the bus. The accident happened when the plaintiff failed to retrieve her right foot which was stepped beyond the yellow line when the bus door was opened by the bus driver in the ordinary manner.  It was entirely due to her own negligence when she failed to heed to the danger of the opening door.  I find that Mr Yau has done what a reasonable and careful bus driver would do before opening the door to let the passengers alight.  There was no negligence on his part.        

24.  Based on the above, I order that the plaintiff’s claim be dismissed.

Quantum

25.  For the sake of completeness, I shall briefly deal with the amount of quantum the plaintiff would be entitled to had she been able to establish liability in this case.

Injury

26.  On the injury of the plaintiff, it has been conceded by her counsel that the injury is of a minor nature which does not involve any fracture or open wound.  It only resulted in soft tissue injury of which the plaintiff claims to have caused her a lot of pain and took a long time to heal.  However, the plaintiff has not produced any expert medical evidence in support of such claims. She is only relying on the several brief medical reports from the treating doctors in the public hospital/clinic and the sick leave given by them to support her claim.

27.  When she was first admitted to the A&E department of Tuen Mun Hospital on the day of the accident, it was found that she had “redness, swelling and decreasing range of movement over right lateral foot (sic)”.  She was treated and discharged and 5 days of sick leave was given to her.  However, on subsequent visits to the general out-patient clinic by the plaintiff (initiated by her rather than by way of follow-up treatment), no further objective physical findings like swelling, bruises, or redness was recorded anymore.  What was left was the subjective complaint of pain or tenderness over the lateral side of the right foot by the plaintiff.  I also note that almost on each subsequent visit to the general clinic, it was the plaintiff who had requested for the sick leave rather than was given to her freely by the doctors.

28.  In my view, the reports from the public hospital show that the plaintiff has exaggerated her complaints and deliberately prolonged her treatment by repeatedly returning to the general clinic requesting for sick leave.  I consider that the soft tissue injury would only take weeks rather than months to resolve.  In my judgment, the plaintiff certainly did not need 158 sick leave for such minor injury.   

29.  There was also inconsistency in the area of her complaint.  In her witness statement, she stated that the intermittent pain and numbness in the right foot was at the side (lateral) and her discomfort sometimes extends to the toes.  However, in evidence, she claims that it was the dorsum of her foot at the base of the 4^th toe and little toe which was painful, not the lateral foot.  When she was first admitted into hospital, the A&E doctors found “mild tender over the lateral side of the right foot”.  Complain about tenderness over the 4^th to 5^th metatarsal bone of the right foot was only first recorded on 10 September 2011.     

30.  In the physiotherapy progress report dated 6 October 2011, it was recommended by the physiotherapist that the plaintiff was fit to be discharged after 4 sessions of physiotherapy.  At the time, the findings made by the physiotherapist included full weight bearing unaided; ankle range of movement was full, no swelling on the right foot, no problem with squatting and with positive power. All the findings supported the plaintiff was well enough to be discharged.  However, when the plaintiff went to the general clinic 2 days later on 8 October 2011, she walked in there with an umbrella and with a limping gait.  To me, this is clearly a plaintiff who tried to play a sick/victim role and deliberately tried to exaggerate her pain in order to prolong her sick leave period.  In my view, there is simply no evidence to suggest that the pain in her right foot would fluctuate to the extent that she would need walking aid one day but did not need it on another.

31.  Also on 8 October 2011, the doctor at the general clinic has recorded that it was not necessary to give her another appointment.  Instead, he recorded that the plaintiff only needed to be followed up on a “need basis” (FU prn).  In my view, this suggests that at the very early stage of the injury, the treating doctors did not consider her complaints were serious enough to warrant a follow-up appointment.  I also note that was recorded by the doctor on that occasion that it was the plaintiff who had made a request for sick leave.

32.  Last but not the least, the plaintiff has failed to produce any independent medical evidence from an orthopaedic expert to comment on the extent of the plaintiff’s injuries and the likely impact on her daily living and working capacity in this case.  In the absence of such evidence, it will be difficult if not impossible for the plaintiff to establish any loss of earnings and loss of earning capacity.  However, I note that it was a conscious decision made by the plaintiff and her legal advisers.

General and special damages

33.  The plaintiff claims a sum of $150,000 for PSLA under her revised statement of damages.  When her counsel opened the case in her written opening, such a claim was reduced to $100,000 without any explanation provided.  At the closing submission stage, the plaintiff’s counsel maintained a claim of $100,000 for PSLA, based on the authority of Fung Tak Yau v Chow Wah Tim t/z Chung Wah Transportation Company and another, unreported, HCPI 973/2006 (Recorder J Fok, SC (as he then was); 13 May 2008).  A closer look of the injuries sustained by the plaintiff in the above case reveals that in fact the claimant had sustained much more serious injuries than the plaintiff in our case.  The orthopaedic experts from both sides agreed that the contusion injury might have caused an injury to the cutaneous sensory nerve branch which gave rise to the victim’s claim of persistent forefoot pain.  Further, both experts agreed that there was a 1.5% impairment of the whole person in that case.  $80,000 was awarded by the court for PSLA.

34.  With respect, the plaintiff’s injuries do not come anywhere close to those found in the above case.      

35.  The other case referred to by the plaintiff’s counsel in the opening was the very old case of Nicola Sian Griffiths v Lettuce Chat Limited Ltd trading as Zip, unreported, DCPI 22/2001 (5.9.2001; HH Judge Li) where a sum of $70,000 was awarded for a minor foot injury.  However, what should be noted is that the injuries were not discussed in details in the judgment in that case and also the counsel for the plaintiff has increased the PSLA claim from $30,000 to $70,000 at the opening stage of the case when the claim was unopposed and the defendant did not appear in the proceedings.  Thus, there is not much value in comparing the injuries and award made in that case to those in our case.

36.  In my judgment, taken all the available medical evidence into account, the plaintiff’s soft tissue injury, which did not involve the any fracture or open wound, would attract a sum of $30,000 as damages for PSLA.

37.  For pre-trial loss of earnings, the plaintiff claims a total loss of earnings from date of accident i.e. 8 September 2011 to 23 January 2012, principally based on the sick leave certificates issued by the government hospitals’ doctors.

38.  In my judgment, given the fact that the treating doctors did not think regular follow-up was necessary only a month after the accident and it was the plaintiff who had kept requesting for the sick leave from the doctors on each occasion when she attended the general outpatient clinic (as contrast to the orthopaedic specialist clinic), it is clear that the relatively minor injury suffered by her did not warrant such prolonged period of sick leave.  In my view, a sick leave period of 2 months, up to the stage when she was discharged from the physiotherapy treatment, would be more than adequate in the circumstances.

39.  Based on the undisputed pre-trial earnings of the plaintiff as a flower shop assistant at $8,000 per month, I would have awarded a sum of $16,000 ($8,000 x 2) as loss of pre-trial earnings in this case.

40.  For the loss of earning capacity claim at $80,000 stated in the revised statement of damages, it is abundantly clear that there was not a single ounce of evidence to support such a claim right from the beginning.  There is for example no evidence to suggest that at some future date, the plaintiff will lose her present employment due to the injuries sustained by her in the accident and hence will suffer a disadvantage in the open labour market.  In fact, the evidence was quite the other way round.  She continued to work for the flower shop at the same salary of $8,000 per month until the flower shop closed down its business in 2015.  There is also no evidence to say what jobs she has been looking for since the closing down of the flower shop and whether her ability or inability to find a job was affected by her claim of residual pain due to the injuries sustained in the accident.  In my view, the plaintiff’s counsel has quite rightly abandoned the loss of earning capacity claim, albeit at the closing submission stage, as there was absolutely no basis to make such claim in the first place. I would have rejected the loss of earning capacity claim in this case in any event.

41.  For the special damages, besides $3,100 medical expenses agreed by the defendant, the plaintiff’s solicitors have failed to produce any breakdown for the claim of $4,000 travelling expenses and $3,000 for tonic food/nourishment/medication.  The basis of such claim was not explained that in the plaintiff’s witness statement or by her in the witness box when giving evidence.  In the absence of such evidence, there is simply no basis for the court to allow any of such claim.

42.  In summary, I would have made an award of $49,100 ($30,000 + $16,000 + $3,100) in this case had I found liability in favour of the plaintiff.

CONCLUSION

43.  In conclusion, based on the aforesaid, the plaintiff’s claim is hereby dismissed with a costs order nisi in the defendant’s favour with certificate for counsel. Such an order will become absolute in the absence of any application from the parties to vary the same within 14 days from the date of handing down the judgment.

44.  Before I leave the matter, I would like to mention one thing which I find to be rather troubling. 

45.  The plaintiff is not on legal aid in this case.  In evidence, she freely admitted that up to the date of the trial she did not have to pay a single cent to her lawyers towards her legal fees.  The plaintiff does not appear to have any independent means to pay them.  She was only making $8,000 per month at the time of the accident and up to the time when her former employer’s business close down in 2015.  She does not appear to be working at the moment and is depending on her son’s income for living.  As to how she can afford to fund the present litigation and how she would pay the defendant’s costs in the event that she loses, it is not clear at all.  She said she would borrow money to pay the costs of the defendant in the event that she loses the case.  In reality, we know that this most unlikely will not happen at all.  One thing however is clear: she has everything to gain and nothing to lose by coming to court to tell an uncorroborated and most improbable story, hoping that somehow she will receive some compensation through an accident which was caused entirely by her own negligence.

46.  In my view, fighting a hopeless case like this will only lead to wasting of judicial resources and unnecessary legal costs incurred by the defendant or its insurers. Such costs most likely will never be able to recover from the plaintiff. It is unfair and unjust to the defendant and to other court users. The legal advisers have a duty to ensure that such hopeless claims should never have been brought to trial in the first place.