LEUNG SHUI MEI v. FUNG WAI KWONG AND ANOTHER

HCPI 464/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 464 OF 2002

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J U D G M E N T

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1. This is an action for personal injuries following an accident to the plaintiff who was a passenger on a bus which was travelling along Tuen Mun Road on 7 May 2001. The bus had just left Tuen Mun Road to go down a slip road which peeled off to the left and went downhill; that slip road led to the Castle Peak Road, and it was there that the plaintiff wanted to alight.

2. What happened was this, and I take this from her witness statement. She did not give evidence, her statement was read. She got up to press the alarm and she said, "All of a sudden and with some unknown reasons, I felt there was a force making me to dash forward. I therefore grabbed the iron handrail at my side to prevent me from falling down. Before I could stand firmly, another greater force made me dash forward again. This time, I lost balance and fell onto the floor." She received injuries, the main one of which, causing her lasting symptoms, was to do with a pain in her shoulder.

3. What had happened was that a motor lorry driven by the 1st defendant in the course of his employment with the 2nd defendant, had run into the rear of the bus. The lorry had been travelling in the same direction as the bus and had left the Tuen Mun Road to go down the slip road behind it. Accordingly, the plaintiff issued proceedings against the 1st and 2nd defendants and her case, as appears from the statement of claim, was that her accident occurred because the bus she was in was rammed from behind.

4. The defendants submitted to judgment, but damages have yet to be assessed. However, the defendants issued third party proceedings against the driver of the bus and the driver's employer, the bus company. They have defended the third party proceedings and counterclaimed for the damage to the rear of the bus.

5. The pleaded issue in the third party notice blames the bus driver for braking too sharply or getting too near the vehicle in front of him, described as an unknown vehicle. In fact, the defendants' case, as it appears on the evidence, is that there was no vehicle in front of the bus and that the bus driver was negligent because he slammed his brakes on when there was no good reason to do so. I suppose in a way they can have the best of both possible worlds and say that whatever it was, whether there was a vehicle there or not, he braked too quickly. The bus driver says, "That is not the case at all. I slowed down and as I was slowing down, I was hit from the rear."

6. I have heard evidence from both the drivers; their statements were read as their evidence-in-chief, a few more questions asked, and they were both cross-examined. It is the case that the driver of the lorry was prosecuted for careless driving. He entered a plea of guilty and in his witness statement he said that plea of guilty was entered as a matter of convenience to save time and money. In his evidence he very frankly said he entered that plea of guilty because he was wrong in bumping into the back of the bus. There is an interesting document in the agreed bundle, which is a transcript of what was said on the plea of guilty.

7. If I may say so, the special magistrate who dealt with the plea of guilty, handled it with some real skill, because the facts were read to the driver of the lorry. He was asked whether he agreed them and the sketch and he said "Yes", but the magistrate was not content to leave it there. He wanted to get to the bottom of the basis of the plea of guilty that was being tendered and there appears at page 128B of the agreed bundle, a transcript of what passed between the defendant and the court.

8. The defendant before me today has agreed that that conversation took place and that he was doing his best to tell the truth there. What he explained there in detail was how his action caused the accident. He said he had waited too long before pulling over into the slip road. In effect, he had got alongside the bus, realised he was in the wrong lane, braked and pulled in behind it. But he pulled in behind it at such a speed that if the bus were to slow down, he did not have room himself to stop in time. That is how he saw his own negligence and that is how he explained it today in court.

9. Mr Wong, who appears for the defendants, very realistically, has not sought to say that the accident, in terms of the lorry hitting the bus, was not caused in part by the negligence of his witness, the lorry driver. What he seeks to argue is that there was also negligence on the part of the driver of the bus. He does that by saying that I should accept the evidence of the lorry driver that there was nothing in front of the bus. I regret to say I do not do that.

10. The bus driver I judged to be a good and steady witness, an honest man and one who inspired confidence and trust. He said, "There was a lorry in front of me and its brake lights came on, I slowed down, then I was hit from the rear." I believed him when he said that: It was not just my assessment of him as a man and the opportunity he had to take in what was in front of him, that lead me to that decision, but the inherent probabilities of the situation do so as well.

11. If the lorry driver is right, here was this experienced bus driver with a good record, driving along with open road in front of him - this is a large modern slip road coming off the Tuen Mun Road as seen in the photographs - and what the lorry driver would have me believe is that for no reason at all the bus driver just stamped on his brakes when there was nothing in front of him. Miss Christina Lee, who appears for the third party, says that is just inherently improbable and I am bound to say I agree with her.

12. It is also to be noted, when one comes to judge the issue of whether or not the bus just stopped for no good reason when there was nothing in front of it, that this was an assertion that the lorry driver did not make until he actually got to court. He was seen by the police three days after the accident and he then made a witness statement, which is at page 105 of the bundle. In the body of the statement he did not mention the fact that the bus slammed on its brakes for no reason.

13. At the end of the statement he was asked by the policeman, "Do you know why DY2773" which was the number of the bus, "braked?" His answer was, "I don't know." The next question was, "Do you have a witness to provide for this accident or anything to supplement?" The answer was "No." That was the end of the statement and the questions. It seems to me that if it was the case that the lorry driver rightly blamed the bus driver in part, that was the moment to say so, and it speaks volumes that he did not do so. He told me in his evidence that he did tell the policeman that and that the policeman had not written it down. I do not accept that.

14. The other line of attack that Mr Wong took on the driving of the bus driver was based on an answer that he gave that at the time he put on his brake he did not look in his rear mirror. Mr Wong says that a reasonable and prudent driver would have done so. In my judgment, even if he had told me he had looked in the mirror and if I had believed that that was the case, it would have had no impact on this accident. All he would have seen was, in the circumstances, a lorry pulling in behind him, too near, too quickly, that was going to hit him and the fact that he saw it would not in any way have given him scope to prevent the lorry hitting him, as he had to brake because of the condition of the traffic in front of him.

15. There was in the cross-examination of the bus driver, the question of how hard he braked once his vehicle had been hit by the lorry and he said he braked hard to keep control of his vehicle to stop it going forward into the traffic in front of him or veering off the road into the side. Mr Wong very realistically concedes that it would be difficult for him to argue that that braking by the bus driver was negligent, but since it hangs in the air in this case, I will deal with it by merely saying this; that that reaction seems to me to have been a perfectly proper one in the circumstances and the natural one any driver would take in the split second of reaction. It would be one designed to keep control of the vehicle and it would not be one that could be characterised as negligent in any way.

16. Accordingly, this is a very simple case of one vehicle ramming into the back of the other, as was the plaintiff's case in the Statement of Claim. However, it is remarkable how the application of analysis to simple facts like this can keep on producing issues. I do not blame Mr Wong in any way for this, but what occurred to him was to say, "Well, look, it could be that it was the first initial braking that caused the plaintiff to reach out and grab the rail and that it was that force on her arm which caused the injury to her shoulder." Medical evidence I have indicates that the symptoms in the shoulder came on a fortnight after the accident and that that was a normal thing to happen.

17. Miss Lee, on behalf of the third party, objects to this line. She says it is not the pleaded case and indeed the pleaded case is quite the contrary. She is right in that, but even so, I have let the argument run and I have let the issue be canvassed. I have done that because at the end of the day, it is a very easy decision to make, which is this; that on the balance of probability it is quite clear that the second greater impact caused the injuries of the plaintiff and not the first impact. I will not read again paragraph 12 of the plaintiff's witness statement, I have already read it and it is quite clear from that, on the balance of probability, that it was the greater second force, that broke her hold on the handrail and sent her to the ground, which would have been the cause of her injury.

18. It would be merely speculative to say that part of her injuries could have been caused by the grabbing of the rail following the initial first braking. That argument also is based on the fact that the initial first braking in itself was negligent. I reject that. I reject that for the reasons I have given about accepting the evidence of the bus driver and also I make this point; that we know that the second impact was not all that great by looking at the nature of the damage sustained to the two vehicles. It is illustrated in the photographs.

19. It was always the plaintiff's case that it was the second impact that was the larger. So, the first impact sounds very much like ordinary braking, because we all know that if you are standing on a bus and you have not got hold of anything, as was the case with this woman who was just getting up, when a bus brakes you do go forward, it is hard to keep your balance unless you do hold onto something. So, even if the defendants are entitled to come along and say this accident was not the one pleaded but something different, and it was caused solely by the initial braking, I reject it.

20. Accordingly, the findings I make can be summarised in this way; that I find that the bus driver was driving perfectly normally, he did nothing out of the usual; that his braking of his vehicle and its slowing down was a response to the action of the traffic in front of it; and that it was the late pulling into the slip lane by the lorry driver that closed the gap and that, given his speed, that gap was too short for him to pull up in time and meet the usual exigencies of the road; that such an ordinary exigency did arise when the lorry in front of the bus slowed down, and accordingly, it was wholly the fault of the lorry driver that there was contact between his vehicle and the bus and it was that second impact, described as the greater force by the plaintiff, which caused her injuries.

21. In those circumstances the orders I shall make will be to dismiss both the defendants' claims against both of the third parties. I give judgment for the 1st third party on their counterclaim in the sum of $26,061.05 which was the agreed damage they suffered for the repairing of the bus and the loss of its use. I will hear counsel now about costs and interest.

(Submissions by counsel)

22. Accordingly, having heard counsel, I shall award the third parties their costs of these proceedings to be paid by the defendants and I shall award interest on the sum recovered by way of counterclaim at half the judgment rate from the date of the counterclaim until today.