WONG KWOK FAI v. THE KOWLOON MOTOR BUS CO (1933) LTD

HCPI 177/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 177 OF 2012

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JUDGMENT

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1.  This is a personal injuries claim arising out of an accident allegedly happened to the plaintiff in the course of his employment with the defendant.

The basis of the plaintiff’s claim

2.  The defendant provides public bus services in Hong Kong, and the plaintiff was working as a bus captain or bus driver for the defendant.

3.  According to the plaintiff’s case as pleaded in the Statement of Claim, the plaintiff suffered from injury at work in 2 accidents: one on 13 April 2009 (“the 1^st Accident”) and the second one on 13 December 2009 (“the 2^nd Accident”).

4.  In the 1^st Accident, the plaintiff claims that when he was returning the steering wheel of his assigned bus with the registration number “MM 2609” (“MM2609”) to his original position during driving, one of the spokes of the steering wheel caught and pulled his left thumb.  As a result, he suffered from left thumb and wrist pain.

5.  In the Statement of Claim, the plaintiff seems to suggest that the 1^st Accident was caused by the negligence of the defendant.  In fact, it is clearly stated in the Indorsement of Claim in the Writ that both accidents were caused by the negligence of the defendant.  However at the commencement of the trial, Mr Clough, counsel for the plaintiff, concedes that the 1^st Accident was a pure accident which was not caused by any fault on the part of the defendant.  As a result, the plaintiff is only relying on the 2^nd Accident as the basis of his claim.

6.  In 2009, the plaintiff was normally assigned to drive MM2609.  According to the computer records kept by the defendant, the plaintiff drove MM2609 for a total of 613 days in the period from 14 June 2006 to 31 December 2009.  After the 1^st Accident, MM2609 was also the bus normally assigned to the plaintiff to drive.  However, there were some occasions on which the plaintiff was assigned to drive other buses:

7.  It is the plaintiff’s case that whenever a bus with heavy steering wheel was assigned to him to drive after the 1^st Accident, he would start to have pain in his left thumb.  The plaintiff uses the words: “the injury came back”.

8.  According to the plaintiff, that was the case when he drove JN7809 on 19 June 2009.  He made a report to the defendant about the pain he experienced during driving the bus.  The plaintiff was then allowed to get off his work and to see a doctor.  The plaintiff also experienced pain when he was asked to drive JB4097 on 25 August 2009.  The plaintiff cannot remember whether he had made a report to his supervisor about this particular incident.

9.  On the day of the 2^nd Accident, the plaintiff was asked to drive LX9965, of which the plaintiff had been assigned to drive on 6 previous occasions since 2006: 3 times before the 1^st Accident and 3 times after 1^st Accident as shown in paragraph 6 above. According to the plaintiff, LX9965 was a bus with “heavier and more cumbersome” steering wheel.  When he was driving LX9965 for some time on 13 December 2009, the plaintiff experienced swelling and pain in his left thumb again.  He cannot remember the exact mechanism causing the injury.  After arriving at the North Point Citybus Terminal, he notified his supervisor about the pain, who then told him to drive LX9965 back to the So Uk Bus Terminal without carrying any passengers.  The plaintiff did so.  After arriving at the So Uk Bus Terminal, the plaintiff got off work and went to the Accident and Emergency Department of Princess Margaret Hospital for treatment.

10.  It is the plaintiff’s case that after the 1^st Accident and the complaints made by the plaintiff in driving other buses including JN7809 on 15 June 2009 and JB4097 on 25 August 2009, the defendant should not have assigned the plaintiff to drive buses with heavier steering wheels including LX9965 which the plaintiff was driving on the day of the 2^nd Accident.

11.  The plaintiff’s case is therefore made on the following basis:

(i) the defendant had various notices and forewarnings of the plaintiff’s weakened condition, especially in relation to driving buses with heavy and cumbersome steering wheels (§4(c) of the Statement of Claim); and

(ii) the defendant had failed to meet the reasonable request of the plaintiff to avoid driving buses with heavy and cumbersome steering wheels in light of the 1^st Accident (§6(10) of the Statement of Claim), and the defendant had failed to arrange and to ensure a lighter duty of work for the plaintiff after being fully aware of his previously sustained injury in the 1^st Accident ((§6(11) of the Statement of Claim).

12.  Mr Clough confirms that it is not plaintiff’s case that the buses were not properly maintained.  In fact, the maintenance records kept by the defendant show that MM2609 and LX9965 were properly maintained at the time of both Accidents.  Further, these 2 buses were of the model “Trident Envio 500” and they belonged to the newest model of buses that the defendant operated in 2009, and all the defendant’s buses were equipped with power-assisted steering systems which helped the bus captains to turn the wheels with modest effort.

Evidence of the plaintiff

13.  After outlining the basis of the plaintiff’s claim, I turn to the evidence adduced at the trial.

14.  The plaintiff himself testifies at the trial. He joined the defendant in 1998 as a bus captain.

15.  During the period from 2006 to 2009, he was assigned to drive MM 2609 most of the time, and he had no complaint about the steering wheel of this particular bus.  He agrees that the 1^st Accident was a pure accident without any fault on the part of the defendant.

16.  After the 1^st Accident, he resumed to work on 20 May 2009.

17.  From his experience, the plaintiff knew that certain buses had heavier steering wheels.  After the 1^st Accident, he had made a request to the defendant that, because of his injury suffered in the 1^st Accident, the plaintiff should avoid driving buses with heavier steering wheels.  Despite such request, the plaintiff was assigned to drive JB4097, JN7809 and LX 9965 on a few occasions after the 1^st Accident, which the plaintiff complained were buses with heavier steering wheels.

18.  Upon cross-examination, the plaintiff admits that, after the 1^st Accident, he was not fit to drive buses with heavier steering wheels.  However according to the plaintiff, only a small portion of the defendant’s fleet of buses had such heavier steering wheels.

19.  On 19 June 2009, the plaintiff was assigned to drive JN7809.  After driving the bus for one trip, he had pain in his left thumb.  He then ceased working on that day and attended the Quality Healthcare Medical Centre for treatment.  Examination showed that there was mild tenderness on stretching the ulnar collateral ligament of the thumb, but the function of the hand was normal.  He was granted sick leave.

20.  The plaintiff made a statement to the defendant in respect of the incident on 19 June 2009 on the same day.  In such statement, he confirmed that the steering wheel of JN7809 was normal.  However, he felt that the steeling wheel was “heavier (較重)” and there was pain in his left thumb after driving that bus for some time that day.  He believed that the pain was caused by the 1^st Accident and he asked the sick leave on 19 June 2009 be treated as the sick leave resulting from the 1^st Accident.  According to the plaintiff, he just told the staff of the defendant’s Insurance Department what happened on that day, and the latter then prepared the statement for him to sign.

21.  On 25 August 2009, the plaintiff was assigned to drive JB4097.  According to the plaintiff, the steering wheel of that bus was heavy and he experienced pain in his left thumb after driving the bus for some time.  There is no documentary evidence to show that the plaintiff had made a report to the defendant about this particular incident, but he submitted sick leave certificate to the defendant for 25 & 26 August 2009.

22.  The plaintiff admits that he was assigned to drive LX9965 on 15 June, 7 August and 19 October 2009.  The plaintiff did not make any complaint to the defendant about driving LX9965 on these days. According to the plaintiff, the absence of complaints does not mean that he experienced no pain whilst driving LX9965 on these occasions.

23.  The plaintiff was again assigned to drive LX9965 on 13 December 2009 (i.e. the date of the 2^nd Accident).  He experienced pain in his left thumb after driving LX9965 for the first trip, and he made a report to the stationmaster about the incident.  The plaintiff was allowed to get off work and he sought treatment from the Accident and Emergency Department of Princess Margaret Hospital on the same day.  Upon examination, it was found that there was tenderness and swelling over the left thumb, and the range of movement of the left thumb was mildly decreased due to the pain.

24.  Although he made a report to the stationmaster, he did not report this incident as a separate work-related accident until 23 June 2009.  He made a statement to the defendant on 30 June 2009.  When he was asked about what happened on the day of the 2^nd Accident, he stated that he believed “his left thumb index web was sprained at some place and some situation that [he] did not know when [he] turned the steering wheel during driving [LX9965] from So Uk to North Point”.  On that day, the plaintiff felt that the steering wheel was “heavier (較重)” but it was still normal.

25.  At all material times, the plaintiff had been assigned to drive buses on the “112” route.  He agrees that the buses assigned for his particular route were usually newer buses.

26.  According to the plaintiff, the defendant required him to take early retirement on medical ground with effect from 24 August 2011.

Evidence of the defendant’s witnesses

27.  I then turn to the defendant’s evidence.  The defendant’s first witness is Mr Wong Kwok Wai.  He is the Assistant Manager (Insurance) in the employ of the defendant, and he gives evidence on the particulars of the employees’ compensation and common law claims made by the plaintiff.  He confirms that the plaintiff only filed the notification of accident with the Labour Department in respect of the 2^nd Accident about 6 months later on 23 June 2010.

28.  The defendant’s second witness is Mr Yeung Mo Pun.  He is the Assistant Manager (Wages) in the employ of the defendant, and he gives evidence on the wages and sick leave payments received by the plaintiff at the time of and after both Accidents.

29.  The defendant’s third witness is Mr Mui Lai Man, who has been working in the maintenance section at the Lai Chi Kok Depot of the defendant (“the Depot”) since 1990 and has been holding the position of senior manager of the Depot since 1998.  According to Mr Mui, all the defendant’s buses were subject to regular and random inspections and examinations, including daily servicing, monthly and annual checks.

30.  Mr Mui produces the maintenance records of MM2609 and LX9965 for the period of 12 months before the 1^st and the 2^nd Accidents respectively.  According to these records, no complaint had been received in respect of the steering wheel of MM2609.  For LX9965, there was a report by a bus captain on 1 September 2009 that “the steering wheel of LX9965 occasionally tended to the right side and it was heavy with loud noise (間中右轉好重及有響聲)”.  The maintenance team of the Depot conducted a driving test on the steering wheel of LX9965 on the same day and no abnormality was found.   No further complaint had been received by the defendant.

31.  Mr Mui confirms that all the defendant’s buses, including MM2609 and LX9965, were equipped with power-assisted system and their hydraulic steering would facilitate the drivers to manoeuvre steering wheels with modest effort.  Both buses were of the model “Trident Envio 500” which was produced by a reputable manufacturer “Alexander Dennis Limited” in the United Kingdom.  The defendant’s buses usually have a life span of 17 to 18 years.  In 2009, LX9965 was about 4 years’ old and MM2609 was about 3 years’ old.

32.  During cross-examination, Mr Mui agrees that individual buses may have different driving characteristics.  However for buses of the same model, the driving characteristics should be the same within a standard range.  According to Mr Mui, 3 factors may affect the heaviness of a steering wheel: tyre pressure, loading of the bus and system failure.  From his experience, the major factor affecting the heaviness of the steering wheel would be system failure.

33.  The fourth witness is Mr Chan Man Fai who is now the Chief Consultant (Bus Captain Training and Assessment) employed by the defendant.  He provides the court with a brief overview of the training provided to the bus captains employed by the defendant including the plaintiff.

34.  The defendant’s last witness is Mr Tso Wang Sang who is another bus captain employed by the defendant.   Unless they were not working on the same day, the plaintiff and Mr Tso were assigned to drive the same bus but on different shift.  In other words, they shadowed each other in their work.

35.  Like the plaintiff, Mr Tso was usually assigned to drive MM2609 in 2009.  On some occasions when MM 2609 was not available, he would be assigned to drive other buses like the plaintiff.  Mr Tso agrees that different buses may have different driving characteristics.  For 3 to 4 times a year, Mr Tso would find that the steering wheels of the buses he was driving were heavier, which might make him more tired after his work.  If the steering wheel of a bus he was driving was too heavy, he would make a report to the maintenance team.  However, he cannot remember whether he had made any complaint in relation of the steering wheels of the buses that he was assigned to drive.

36.  Mr Tso has no recollection about his work on the relevant dates, i.e. 13 April, 19 June, 25 August and 13 December 2009.  He worked as normal without any problems.

Merits of the plaintiff’s claim

37.  After hearing the oral testimony of the witnesses and reading their witness statements, I find them all to be truthful witnesses.  In fact, there is nothing before the court to cast doubt on the credibility of these witnesses.

38.  Despite that the plaintiff may be a truthful witness or a hardworking employee as described by Mr Clough, I do not accept that the plaintiff can establish any negligence on the part of the defendant in respect of the 2^nd Accident.

39.  The plaintiff’s case is that, having learnt of the injury suffered by the plaintiff in the 1^st Accident and the complaints made by the plaintiff after the incidents on 19 June and 25 August 2009, the defendant should not have assigned the plaintiff to drive LX9965 which was a bus with heavier and more cumbersome steering wheel, or at least the steering wheel of which was heavier than that of MM2609.

40.  The plaintiff cannot remember the exact mechanism causing the injury on the day of the 2^nd Accident, and he just complains that the steering wheel of LX9965 was heavier than that of MM2609.  However according to the maintenance records of the defendant, LX9965 was a properly maintained bus at the relevant time.  Although there was a complaint about the steering wheel on 1 September 2009, no abnormality was found and no further complaint had been received after the conduct of the road test.  Further, the plaintiff had driven LX9965 on 6 occasions before the 2^nd Accident, 3 of which were in the period between the 1^st and the 2^nd Accidents.  According to the plaintiff, he would have stopped driving if he found some problem with the bus or he suffered any significant pain in his left thumb.  Yet he made no complaint about driving LX9965 on these occasions, and he finished his shifts without any incident.  In addition, Mr Tso, who drove LX9965 on 13 December 2009 before the bus was handed over to the plaintiff, does not have any recollection of the heaviness of the steering wheel or any defect of the steering system.  All these factors show that LX9965 was a properly maintained bus on 13 December 2009.

41.  Furthermore, there is no objective evidence to prove that the steering wheel of LX9965 was actually heavier than that of MM2609.  The heaviness and the stiffness of a steering wheel are very much subjective perception on the part of the driver.  Without any objective assessment, it would be very dangerous for the court to find that the steering wheel of LX9965 was actually heavier than that of MM2609, or if it was indeed heavier, how much it was heavier than that of MM2609.

42.  There is also no basis for the court to find that the steering wheel of MM2609 was the benchmark and as a result any steering wheel heavier than that of MM2609 would be unsafe for the plaintiff to drive, even taking into account his pre-existing injury.  Obviously, the defendant, as the employer of the plaintiff, had the duty to, amongst other things, provide a safe system of work and a safe bus for the plaintiff to drive.  The maintenance records of the defendant show that LX9965 was a properly maintained bus on the day of the 2^nd Accident.  To a great extent, this is also supported by the evidence of Mr Tso who was driving LX9965 before it was handed over to the plaintiff.  By assigning the plaintiff to drive a properly maintained and defect-free bus, I find that the defendant had discharged its duty to the plaintiff.  To require the defendant to compare the heaviness of the steering wheel of MM2609 and those of the buses that the plaintiff was assigned to drive is simply too onerous a duty to be imposed on the defendant.

43.  Further, although I accept the plaintiff to be a truthful witness, I have serious doubt about his evidence that he had made a specific request to the shift allocator that he should not be assigned to drive a bus with heavier steering wheel.  Firstly, there is no document to prove that the plaintiff did make such a request to the shift allocator.  Secondly, the plaintiff cannot give any particulars about the identity of such person.

44.  Even if the plaintiff did make such a request, I do not accept that the defendant had to ascertain every time when the plaintiff was assigned to drive a different bus, the steering wheel of that bus was not heavier than that of MM2609.  As I have mentioned above, the defendant’s duty was, in the present context, only to provide a safe and properly maintained bus for the plaintiff to drive.  As the plaintiff had resumed to work without submitting any further sick leave certificates to excuse his attendance at work on the relevant days (save as those submitted afterwards), the defendant should be allowed to conduct its business on the basis that the plaintiff was fit to drive any safe and properly maintained bus of the defendant’s fleet.   To hold otherwise would mean that the defendant had to do something which was quite unreasonable and impracticable in the circumstances.

45.  Mr Clough complains that the procedures adopted by the defendant in taking the statements from the plaintiff on 19 June 2009 and 30 June 2010 were not even-handed and disadvantaged the plaintiff. However, since I do not rely on any “admissions” made by the plaintiff in these statements in holding the case against him, such complaint is a non-issue. Further, as the plaintiff suffered pain in his left thumb in a series of incidents in 2009, it would be quite difficult for a layman like the plaintiff to appreciate the significance and the inter-relationship between the various incidents.  Hence, no adverse inference would be made against the plaintiff for the delay in making a separate claim for compensation in respect of the 2^nd Accident on 23 June 2010.

46.  Mr Clough has kept on reminding me that the plaintiff, being a humble employee, was always vulnerable and was at risk at work, and that the injury in the 2^nd Accident was probably caused by “repetitive tasks, vibrations, sustained or awkward positions and long hours”.  Further, he argues that the plaintiff had failed to warn the plaintiff as to the risks of repeatedly turning a heavy and cumbersome steering wheel, which include, amongst other things, overexerting and straining his thumb and wrist.

47.  However, one must not forget that it is an inherent requirement of the job of a bus captain to drive a bus.  One cannot expect the steering wheel of a bus to be lighter than that of a private car.  Nevertheless, all the defendant’s buses were equipped with power-assisted steering systems which enabled the bus captains to turn the wheels with modest effort.  More importantly, there is no evidence to show that there is a higher risk for a bus captain to sustain injuries in turning the wheel of a bus under normal working condition as compared with other drivers, whether professional or not, in driving other kinds of vehicles.  Under such circumstances, it would be quite unreasonable to require the defendant to do anything more apart from providing well-maintained and safe buses for the plaintiff to drive in the course of his work.

48.  I also accept that individual buses may have different driving characteristics, and some buses may have heavier steering wheels than those of others.  However, that does not mean that buses with heavier steering wheels were unsafe for the plaintiff to drive even taking into account his pre-existing injury.  By way of illustration, we, as drivers, all know that private vehicles of different brands and manufacturers may have different driving characteristics.  Some drivers may find that private vehicles produced by European manufacturers may have heavier steering wheels than those of the vehicles produced by, say, Japanese manufacturers.  However, does it mean that European vehicles are unsafe for persons like the plaintiff to drive?  The answer is certainly no.  Hence in my judgment, the mere fact that the plaintiff felt that the steering wheel of LX9965 was heavier than that of MM2609 is not a sufficient reason for the court to find negligence on the part of the defendant.

49.  Based on the aforesaid, though I have some sympathy for the plaintiff as he had been working for the defendant for a long time, he can only claim for employees’ compensation for the injuries suffered by him in the course of his employment.  So far as the common law claim is concerned, the defendant is not liable for the injury suffered by the plaintiff in the 2^nd Accident and the plaintiff’s claim is therefore dismissed.

Quantum

50.  The plaintiff was born in October 1969.  After leaving the employment of the defendant on medical ground, the plaintiff had worked as an operator of a newspaper stall.  He now works as a security guard.

51.  In personal injuries claims, it will be usual for the court to proceed to assess the quantum of a plaintiff’s claim even if no liability is established against the defendant.  In the case that the court’s decision on liability is reversed on appeal, this would save the trouble of having an additional hearing on assessment of damages.

52.  However, I do not consider it appropriate for me to deal with the issue of quantum in the present case.  In determining the issue of liability, I have proceeded on the basis that that the defendant’s duty was, in the present context, only limited to the provision of a safe and properly maintained bus for the plaintiff to drive.  As the plaintiff injured himself in driving a properly maintained bus LX9965 on the day of the 2^nd Accident, it would virtually mean that the plaintiff, in view of the injury suffered by him in the 1^st Accident, would no longer be suitable to work as a bus captain after the 1^st Accident as he was not able to turn the wheel of a properly maintained bus.  As the plaintiff cannot work as a bus captain in any event, he may not be able to claim for the loss of income suffered by him as a result of switching to some alternative employments, and the quantum of his claim is therefore very limited.  Since the question as to whether the defendant was suitable to work as a bus captain after the 1^st Accident are both relevant to the issues of liability and quantum, it is not appropriate for me to assess the quantum of the plaintiff’s claim under such circumstances.

53.  There is also another reason.  As I have mentioned above, it is the plaintiff’s pleaded case (as clearly shown in the Indorsement of Claim) that both the 1^st and the 2^nd Accidents were caused by the negligence of the defendant.  Based on such pleaded case, both the plaintiff’s and the defendant’s experts gave their medical opinion on the basis that all the plaintiff’s existing injuries and permanent disabilities are caused by the negligence of the defendant.  However, Mr Clough concedes at the commencement of the trial that the 1^st Accident was not caused by any fault on the part of defendant.  This would have a serious implication on the issue of quantum.  As the injury suffered by the plaintiff in the 1^st Accident is pre-existing injury for which the defendant is not liable to compensate him, the court, in the case that liability is established against the defendant for the 2^nd Accident, may have to apportion the injuries caused by the 2 accidents in order to properly assess the quantum of the plaintiff’s claim.

54.  Prior to the commencement of the trial, the court had made an order, with the consent of both parties, to dispense with the attendance of the medical experts at the trial.  In view of the latest concession made by the plaintiff, the parties had to ask the medical experts to prepare supplemental reports on the apportionment of injuries on an urgent basis.

55.  According to the supplemental reports, Dr Peter Tio, expert for the plaintiff, apportions 20% of the plaintiff’s existing injuries to the 1^st Accident and 80% to the 2^nd Accident.  On the other hand, Dr Patrick Wong, expert for the defendant, is of the opinion that “the 2^nd Accident was most likely to be one of the multiple aggravation episodes only”.  Of the 3% whole person impairment suffered by the plaintiff, the 2^nd Accident “contributed about 0.5% out of the 3% at most”.

56.  Unfortunately, apportionment of injuries is not just about percentages.  In Yiu Wai Kan v Law Cho Tai, unreported, HCPI 62 of 2010, Master M Ng, as she then was, had set out the relevant legal principles and questions to be answered in apportioning pre-existing injuries and injuries attributable to the accident.  It is clear that both experts have not dealt with these questions satisfactorily in apportioning the injuries in the supplemental reports, and as a result it makes my task in assessing the quantum more difficult.  In the case that my decision on liability is reversed on appeal, there should be an additional hearing on assessment of damages so that the experts can provide more assistance to the court in answering the various questions set out in Yiu Wai Kan.  Hence, I do not assess the quantum of the plaintiff’s claim in this Judgment.

57.  For the above reasons, I dismiss the plaintiff’s claim.  I also make the following order nisi relating to the issue of costs:

(i) the plaintiff do pay to the defendant the costs of this action; and

(ii) the plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

58.  The order nisi shall be made absolute 14 days after the date of the handing down of this Judgment.