WU KAM WING v. THE KOWLOON MOTOR BUS CO.(1933) LTD.AND ANOTHER

------------------

__________

JUDGMENT

__________

Sir Alan Huggins, V.-P. :

1. The main issue in this appeal is whether there was evidence from which negligence on the part of the 2nd Defendant can properly be inferred.

2. The 2nd Defendant was the driver of a motor-bus owned by the 1st Defendant. The Plaintiff was a passenger in that bus. It was a double-decked bus and at the material time the Plaintiff was the only passenger on the upper deck. The bus was travelling southwards along the Clear Water Bay Road, a single carriageway road divided into two lanes by a double white line. The southbound lane was 10'6" wide and one of the photographs shows that the bus would have almost filled that lane, although no measurement of the bus's width was given in evidence.

3. At 11.45 p.m. the 2nd Defendant was on the last journey of his shift. He negotiated a steep right-hand bend and then came to a gentle left-hand curve where road widening work was in progress. Just off the then existing carriageway a series of iron girders had been erected for the purposes of the work: they were vertical or nearly vertical and reached at least as high as the upper deck of the bus. Whether any of them slanted so as to protrude slightly over the carriageway is not clear. As the bus passed these girders the left arm of the Plaintiff came into contact with one of the girders and was wrenched off just below the shoulder. There was no evidence of any damage to the bus.

4. The Statement of Claim alleged that the 2nd Defendant was travelling at an excessive speed and without due regard to the safety of his passengers: as a result the bus was "jerking about and slanted to the left" and due to that motion the Plaintiff's arm "was thrown off the window sill" and came into contact with a girder. In his evidence the plaintiff conceded that he was sitting with his left arm resting on the sill, but he gave a demonstration which is recorded as showing that the elbow was only just protruding outside the bus. With his right hand he was holding the rail along the top of the seat in front of him. He attributed the motion of the bus to its being driven ''very fast": he estimated the speed at 30/40 m.p.h., but admitted that, as he is not a driver, he found it difficult to make an estimate. He said the road was bumpy at the best of times - and the 2nd Defendant said it was heavily cambered, "like back of a tortoise". Nevertheless, the lurch which the Plaintiff says caused his arm to be thrown out appears to have been exceptional, for he did not complain of being thrown about before.

5. Deputy Judge Caird made his findings in the following passages:

The judge disbelieved the Plaintiff's evidence as to the speed of the bus and did not say whether he believed the evidence of the 2nd Defendant that he was driving at 27-28 m.p.h.

6. Our first anxiety is whether it was open to the judge to infer that the lurch which caused the Plaintiff's arm to be thrown out was, on a balance of probabilities, due to negligent driving on the part of the 2nd Defendant. It is common knowledge that a bus - and in particular double-decked bus - will sway from side to side even when being driven in a normal fashion, although

"If there was evidence of an extraordinary swerve or sway that might be evidence of negligence on the basis of res ipsa loquitur": (per Salmon, L. J. in Wragg v. Grout 1966 The Times, April 22)

7. The judge has found in effect that there was an extraordinary lurch, which had not been satisfactorily explained. We do not think that it is a finding with which we can properly interfere.

8. The question then arises whether the injury to the Plaintiff's arm was in any part due to that lurch. The judge found that it was and, again, we do not think we can properly interfere with his finding. The Defendants urged that, if the Plaintiff had not been sitting in a dangerous position, the accident would not have occurred, so that the negligence found against the 2nd Defendant was not the cause of the injury. That does not follow: it can equally be said that if the bus had not lurched the accident would not have happened.

9. The judge having Found that the Plaintiff's arm was thrown out by an extraordinary lurch, he further found that the 2nd Defendant was negligent in driving as close as he did to the iron girders. It must, of course, be accepted that there can be negligence even where no damage has resulted. Had the Plaintiff's elbow been struck as it lay in the position demonstrated to the judge, it could perhaps be said that, save in most exceptional circumstances which did not obtain here, the bus was being driven so close to danger that the driver was negligent. The difficulty is that the judge has made no finding as to the actual distance between the bus and the girder: it could have been anything between 2" or 3" and, say, 16". Mr. Mills-Owens's argument appeared to be that, whatever the distance, this accident could not have happened unless the bus was unreasonably close. We are quite unable to accept that contention. It is totally unreasonable to expect a driver to allow such clearance between his vehicle and any possible source of danger that no conceivable accident can happen to a passenger. The judge expressly recognised that in Hong Kong buses frequently have to pass "extremely close to potentially dangerous hazards to the left of the roadway". In our judgment there was insufficient evidence to support his finding that, apart from the extraordinary lurch, this bus was being driven dangerously close to the girders.

10. The judge found the Plaintiff guilty of contributory negligence to the extent of 20%. The Defendants contended that, assuming the 2nd Defendant was negligent at all, the contributory negligence greatly exceeded 20%. By a Respondent's Notice, on the other hand, the Plaintiff contended that he was not negligent at all. Clearly there was evidence from which the judge could find that the Plaintiff was negligent: even the most unintelligent passenger must realise that to sit with any part of his body protruding outside a vehicle creates a risk of injury. Such a risk exists even where the vehicle is running on fixed rails: a fortiori, there is a risk where the wheels of the vehicle are not restricted to a determined line of travel.

11. The judge gave no reasons at all for his assessment of the comparative degrees of negligence. Had he done so we would have hesitated before interfering with his conclusion. As it is, we find nothing in the evidence which would justify a conclusion that one party was more negligent than the other. It is not enough to say that the driver was 'in charge of a lethal weapon" and must therefore have been more to blame than his passenger, although that is the substance of the argument advanced in support of the judge's assessment. We therefore allow the appeal on the issue of liability to the extent of holding the Plaintiff to be entitled to recover only 50% of his loss.

12. In the event the only issue as to quantum of damages which has been left to us on the appeal relates to a finding that the Plaintiff's income would have been $3,500 p.m. at the date of the trial if he had still been employed by the employer for whom he was working at the time of the accident. Objection is taken that the particulars of loss given by the Plaintiff pursuant to the Practice Direction of 29th November 1984 stated the figure at $3,200 p.m. and it is argued that, the particulars being in the nature of a pleading, the Plaintiff was not entitled to more than he had claimed. It is true that the evidence upon which the finding was based was not led in chief but came out in re-examination of the Plaintiff's witnesses. We are told that objection was taken to the introduction of such evidence in re-examination. It does appear from the judge's notes that some objection was taken in the course of the re-examination, but the judge has not recorded the nature of that objection. It was within the discretion of the judge to allow admissible evidence to be given for the first time in re-examination, subject to the right of opposing parties to cross-examine upon it, and we are prepared to assume that the judge duly exercised his discretion in the present case. In our view the evidence was not inherently inadmissible, although we appreciate that the Defendants may have been taken by surprise. It should not be assumed that the judge's discretion in assessing general damages is in any way limited by the Practice Direction to which we have referred, it being aimed at the saving of costs. Failure to give accurate particulars merely carries the sanction indicated by the final paragraph of the Practice Direction itself. Accordingly the judge was entitled to make the finding which he did make, and we hold that the appeal against quantum fails.

25th October 1985