CHAN WAN v. HONG KONG TRAMWAYS LTD. AND OTHERS

HCA 6776/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6776 OF 2000

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J U D G M E N T

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1. This is an appeal brought by the Plaintiff against an order made by a master on 28 June 2002 striking out those parts in her Statement of Claim comprising her claim against the 2nd Defendant.

2. The facts in the present case are bizarre. On 23 October 1996, the Plaintiff boarded an eastbound tram near Admiralty. She ended up falling off the tram whilst it was travelling along Hennessy Road near Landale Street in Wanchai.

3. According to her own police statement given after the accident, the accident happened thus:

"我當日（96年10月23日）大約中午12時50分我乘搭架電車，而我嘅目的地去灣仔，而我係金鐘上車，我上車時有好多人上車，我上車後我就企在電車上客門與入閘器之間，而我夾著在中間，而架電車一直在行駛，架電車行駛期間上落門有無打開我就唔記得。之後電車行至軒尼詩道近蘭度街我就從車內跌出車外，我跌出車外後我整個人爬在地上背部向天，之後啲路人幫我報警，我就被送到醫院。我在今次意外中要投訴架電車司機關門不小心，將我夾著我不能離開。

1．	問:	妳上車後妳身體任何一部份有無比架電車上落門夾住？
	答:	我唔記得。我只記得我上車後我在上客門與入閘器之間。
2．	問:	你上車後上客門是否關上才開車？
	答:	我唔記得啦！
3．	問:	咁你在電車內跌出街外時，上客門是否打開？
	答:	唔記得！
4．	問:	咁你認為你點樣從車內跌出車外？
	答:	我唔知道，但車上乘客應該見到我點樣跌出去。”

4. The accident was eye-witnessed by a fellow passenger who gave a police statement one week after the accident. This is what he told the police:

“我當日（96年10月23日）中午12時30分，我乘搭著架電車117號，而我係中環?豐銀行對面電車站上車，我嘅目的地去跑馬地。我上車後我企在下層近上層樓背位，我面望向上落門方向。當時架電車滿載乘客。架電車到達軒尼詩道近蘭度街，我突然聽到車上有人叫救命，我見當時有一名女子企在電車上客門與入閘鐵柱之間，而該名女子之身體並無比上落門夾著。我嘅視線一直留意著個女子，之後個女子伸頭門面番上客門望出街外，然後我見佢嘅舉動，就整個人爬上上客門及坐在上客門，而個女子嘅手扶著上落門之鐵枝，而個女子嘅身體對著街外。當時車上有其他乘客喝住佢，叫佢唔好跳出去，但該名女子並無聽，就跳出車外，跌在地上，之後架電車繼續行駛，架電車117號行至波斯富街，有警察將架電車截停，及有警察上車詢問何人目擊此一事 ... 在今次意外中我認為不是交通意外，只係個女子自己從車廂內跳出車外受傷。”

5. The Plaintiff twice applied for legal aid to sue the tramway company. According to the attendance note taken by the responsible legal aid officer in respect of her first application, the Plaintiff "admitted sitting on the door of the tram and then jumped out of the tram at her own initiative because she wanted to get out of the tram because the passengers all laughed at her".

6. The first application was refused by the Director of Legal Aid. In the reasons for refusal prepared by the responsible legal aid counsel on 25 November 1997, she wrote that:

"The A/P [i.e. the Plaintiff] alleged that fellow passengers laughed at her and she wanted to get out of the tram. While the tram was moving, she climbed over the tram door and jumped out and hurt herself. This was admitted by her during an interview with the undersigned."

7. No appeal was lodged by the Plaintiff against the refusal of legal aid. However, she made a second application for legal aid on 9 July 1999. In support of her fresh application, the Plaintiff supplied a written statement in English prepared and signed by her, setting out how the accident happened. The material part reads as follows:

"At about noon of 23.10.1996, I got on a tram heading for the Eastern District at Queensway Tram Station. There were many passengers getting on the tram that time. However, I was not the last one who get on the same. As I was on board the tram, in a place between the rear wheel and the rear door/turnstile. When the tram driver started the tram and closed the tram door, I was shuffled/propelled towards the wheel by the rear door and squeezed by the gap of the wheel for few seconds before I got out. I cried out for help at that time. However, no one offered me a helping hand. Instead, the fellow passengers laughed at me. I intended to go to move forward to argue with the tram driver and asked him why he was so careless and caused me to sustain an injury. However, the passengers thronged the rear part of the tram and stood in my way. I had no alternative and climbed up to the door of the tram door and sat on there. Before deciding what to do, a woman passenger suggested to me that I jumped off the tram. I was very angry at that time. I did not know how I subsequently fell off the tram. Perhaps, the tram made a round at Wanchai and I lost my balance and fell off as a result. I sustained injuries on both hands and both legs when I fell down to the ground. The tram moved. I was lying on the ground. Some passer-by reported the accident to the police on my behalf. Before long, police officers arrived. Subsequently, I was sent to Eastern Hospital for treatment.

Paul Cheung of LAD [Legal Aid Department] has read my police statement to me. However, I wish to dispute the statement. I did not remember if I had said the passengers on board should have witnessed the accident when the police asked me how I fell out of the tram. I also want to say that I was not the last one who got on the tram as it was stated in the police statement.

I remember the police took statement from me while I stayed in the hospital. Perhaps, I had no clear mind at that time. I hope that DLA will look at my above fresh statement instead of the police statement.

Paul Cheung of LAD has also read the witness statement [of the passenger]. I disagree to his statement to the police. I was shovelled towards the wheel and was squeezed by the wheel, not as stated in the witness statement."

8. The second application was again refused. Again no appeal was lodged.

9. In the present action, the Plaintiff sues the 1st Defendant, the tramway company, for negligence in respect of the construction of the tram. She also sues the 2nd Defendant, in substance, for having negligently handled her application for legal aid. In a nutshell, she complains that the Director negligently failed to consider properly the merits of her intended claim against the tramway company, and failed to grant her legal aid. She claims compensation accordingly.

10. It is patently clear from her pleading, the documents she has filed in this action, as well as her oral and written submissions made in response to the present strike out application by the 2nd Defendant, that she holds the tramway company responsible for her strange action of climbing up the rear tram door, sitting on it and eventually jumping out of the tram (as per the witness) or falling off the tram onto the ground (as per her subsequent statement). She maintains that because of the congested situation in the tram, she was hurt by the turnstile at the back. She was trapped at the space between the turnstile and the tram door. Other passengers laughed at her. She was very confused at the time, and ended up climbing up the tram door and sitting on it.

11. On those most unusual facts, I can well understand why her two applications for legal aid were refused and why her claim was struck out by the learned master below. Regardless of her subjective mental condition at the time, her action of climbing up the tram door and sitting on it was most unusual and unexpected, or put another way, not reasonably foreseeable by anybody including the tram driver or tram company. It was also most dangerous. In those circumstances, to say that she has a case against the tramway company in respect of her strange action requires a lot of imagination. So in so far as this part of her intended case is concerned, I have no difficulty in agreeing with the learned master, who has set out in great detail her reasons for striking out the relevant parts of the Statement of Claim in a written judgment, relating to her analysis of the Plaintiff's intended case against the tramway company.

12. And of course, if the Plaintiff had no reasonably arguable case against the tramway company, there could be no question whatsoever of the Director of Legal Aid being negligent in refusing to grant her legal aid. For the sake of completeness, I should note that in the present application to strike out, the 2nd Defendant does not argue whether the Director of Legal Aid owes a duty of care to an applicant for legal aid like the Plaintiff, or what, if any, effect the fact that the Plaintiff has not appealed against the two decisions to refuse her legal aid may have on her cause of action against the Director of Legal Aid, particularly in relation to whether there was a duty of care, and in relation to causation of loss. The strike out application was and the present appeal is focused solely on whether the Plaintiff had any reasonably arguable case against the tramway company in respect of her injuries in the accident, meriting the grant of legal aid.

13. However, the matter is not as straightforward as it certainly seemed at first glance. It is unclear on the material before me for how long the Plaintiff had been sitting on the edge of the tramway door before she either jumped or fell off the travelling tramway onto the ground. This point does not seem to have received much, if any, attention by anybody including the 2nd Defendant when handling the two applications for legal aid. From the above extracts of the various accounts of how the accident happened, it is possible that the Plaintiff had sat on the edge of the tram door for a while before she jumped or fell off the tram. Her own account contained in her English statement certainly suggests that she did not immediately jump or fall off the tram after climbing up the tram door. During oral submission at the hearing after this matter was raised by the Court, the Plaintiff said that she had sat on the edge of the tram door for about a minute before she fell off the tram. It is not clear from the independent witness' account as to the duration of the Plaintiff sitting on the edge of the tram door. Certainly some passengers shouted to her not to jump off the tram, but she did not listen. But it is not clear from the statement as to the length of time between her climbing up the tram door and her jumping (or falling) off the moving tram.

14. The significance of this lies here: Granted that the Plaintiff should be held totally responsible for her bizarre action of climbing up the tram door and sitting on the edge of it, the fact remains that she had sat on the edge of the tram door for a while whilst the tram was travelling. Depending on the duration of her sitting on the edge of the tram door, the tram driver may or may not have had a reasonable opportunity to notice her very dangerous presence on the edge of the tram door. And of course, if he had or ought to have noticed her presence, the driver ought to have immediately stopped the tram, in which case even if the Plaintiff were to have jumped off the tram in any event, the extent of her injuries by jumping off a stationary tram would, at least according to commonsense, have been lesser than the actual injuries that she had suffered by jumping or falling off a moving tram. Furthermore, if the Plaintiff did not really jump off the tram but just fell off the tram by reason of this dangerous position that she had placed herself to be in, and if the tram had been stopped, the accident might well not have happened.

15. Of course, I bear in mind that according to the material before me, the tram was full of passengers at the time. But this should not have prevented the tram driver from having a reasonably clear and good view of the rear tram door from his left rear mirror, and if anybody was sitting on the edge of the rear tram door, the driver ought to have been in a position to see it.

16. That is why I said above that much would turn on the actual duration of time that the Plaintiff has spent sitting on the edge of the tram door. If, as she how claims, she had sat on the edge of the tram door for about a minute before she jumped or fell off the tram, then arguably (and I would not wish to put it any higher than that) the tram driver ought to have noticed her presence, ought to have stopped the tram, and arguably the accident could have been prevented or the injuries suffered by the Plaintiff would have been lessened. A tram driver may or may not have as much need as an ordinary vehicle driver to constantly look at his rear mirrors or pay heed to the traffic on the two sides at the rear of his path. This depends on the facts on which there is not much if any evidence before me.

17. For all the above reasons, and I am reluctant to be more specific given the conclusion that I have reached (lest what I say here should affect the future adjudication of the present claim), I am of the view that the Plaintiff's intended claim against the tramway company was not totally hopeless, although on any analysis, her own responsibility for her eventual injuries must have been very substantial. At this strike out stage, I am not prepared to conclude that the Plaintiff had totally no arguable case against the tramway company in respect of her injuries.

18. Of course, I am concerned not with a strike out application by the tramway company against the Plaintiff's claim. That has already been successfully done by the 1st Defendant. Thus far there has not been any appeal against the strike out order in respect of the Plaintiff's claim against the 1st Defendant (or for that matter, her claim against the 3rd Defendant which has also been struck out). I am concerned with whether there is an arguable case of negligence against the Director of Legal Aid in respect of his refusal of legal aid to the Plaintiff on the ground that she had no arguable case against the tramway company in respect of her injuries in the accident.

19. Having concluded that at least at this stage, one cannot say that the Plaintiff did not have an arguable case against the tramway company, the next question is of course whether the Plaintiff has an arguable case that the Director of Legal Aid was negligent in refusing to grant her legal aid notwithstanding that she had, ex hypothesi, an arguable case against the tramway company. Now it is of course trite that not every error or mistake would amount to negligence. An error of judgment may or may not amount to negligence. So even if one were to assume that at the end of the day the court held that the tramway company should have been at least partially responsible for the injuries suffered by the Plaintiff in the accident, it would not necessarily follow that the refusal of legal aid by the Director of Legal Aid was negligent.

20. However, this is not something that I need decide in this appeal. This is a strike out application. The burden is on the 2nd Defendant to show that the Plaintiff has no arguable case, and that this is a plain and obvious case to strike out. Given the way the 2nd Defendant has chosen to run the present application, I have heard virtually no submission on whether the refusal of legal aid was a mere error of judgment or something amounting to negligence. In any event, based on the available material before me, I am not prepared to conclude at this strike out stage, bearing in mind the well-known principles relating to this type of applications, that the refusal of legal aid must have involved, at most, only an error of judgment.

21. As I said, the duration of time that the Plaintiff has spent sitting on the edge of the tram door is unclear. It is possible that in fact, she only sat on the edge momentarily before she jumped or fell off the tram, in which case the tram driver would have had no opportunity whatsoever to notice her presence on the edge of the rear tram door or in any event to slow down or stop the tram. If that was the case, the Plaintiff would have no case whatsoever against the tramway company. But before the actual duration was fully investigated or determined, it is arguable, in my judgment, that to refuse legal aid in those circumstances was premature. But as to whether that was only an error of judgment or amounted to negligence is again something arguable. Of course, in those circumstances, the causation of the Plaintiff's loss and damage would also be in issue.

22. So for all these reasons, I am not prepared to drive the Plaintiff from the judgment seat. I therefore make an order allowing the appeal, setting aside the order of the learned master, and giving the Plaintiff leave to amend her Statement of Claim along the lines I indicated above in respect of how her case against the 2nd Defendant could be run within 14 days from the date this judgment is handed down, the 2nd Defendant leave to file and serve a defence within 14 days thereafter, and the Plaintiff leave to file and serve a reply (if any) within 14 days thereafter.

23. As regards costs, normally they should follow the event. However, I allow the appeal on a ground which is quite different from those maintained by the Plaintiff here and below, and indeed it differs somewhat from what has been pleaded in the Statement of Claim, as is reflected by my giving leave to the Plaintiff to amend her pleading. I think it is fair to order that the costs here and below be in the cause. I make an order nisi accordingly. Unless either party applies to vary it within 14 days after this judgment is handed down, it shall become absolute upon the expiry of the 14-day period.