WAT KWING LOK v. THE KOWLOON MOTOR BUS CO (1933) LTD

HCPI 936/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 936 OF 2005

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J U D G M E N T

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Introduction

1. On 12 October 2002 the plaintiff was a fare paying passenger on board the defendant’s bus registration number KG 2997 (“the bus”) travelling on Route 93K in Kowloon.  The bus was a double decker bus of the type shown in the photographs in the trial bundles.

2. The plaintiff boarded the bus at Yan Ming Court at about 7:55 pm.  This was the first stop after the Po Lam Metro City terminus (“Po Lam terminus “) in Tseung Kwan O.  Route 93K was the route from Po Lam terminus to Mongkok KCR Station Terminus (“the Mongkok terminus”) in Kowloon.

The accident

3. After paying his fare at the front of the bus the plaintiff went upstairs to the upper deck.  On reaching the upper deck he walked towards the rear of the bus as he wanted to take a seat at the rear.  As he was walking along the aisle of the upper deck he stepped on a cylindrical battery which was either a 2A size battery or a 3A size battery and he fell backwards onto the floor.  He lost consciousness and sustained serious personal injuries with permanent disabilities.  The plaintiff was 38 years old at the time of the accident and was physically active and in good health.

4. This is the trial of his action for damages for personal injuries against the defendant.

5. At the outset of the trial counsel informed me that the issue of       quantum was agreed between the parties.  The only issue left for me to determine was the issue of liability of the defendant for the plaintiff’s injuries.  If the defendant were found to be liable, then the question of whether or not the plaintiff was guilty of contributory negligence was also to be determined.

The applicable legal principles

6. The law and the applicable legal principles are not disputed.

7. The plaintiff’s causes of action are in contract, the tort of negligence and under the Occupier’s Liability Ordinance Cap. 314.  There is no dispute that the defendant was an occupier of the bus and owed the plaintiff the common duty of care.

8. The standard of care is the same whether in contract, common law negligence and the common duty of care under the Occupier’s Liability Ordinance.

9. The defendant has a duty to exercise reasonable care and skill for the safety of its passengers during the carriage.

10. As Lord Radcliffe said in Barkway v South Wales Transport Co. Ltd. [1950] 1 All E R 392 at 404 :

“	Now, a carrier’s obligation to his passenger, whether it be expressed in contract or in tort, is to provide a carriage that is as free from defects as the exercise of all reasonable care can make it.”

11. In Jones v Baton Rouge Electric Co 192 So. 539, 20 December 1939, the plaintiff passenger suffered injuries whilst riding as a passenger on a bus operated by the defendant in the City of Baton Rouge.  The plaintiff slipped on a banana peel in the aisle of the bus as he attempted to disembark.

12. In the Court of Appeal of Louisiana, Ott J. said in his judgment (at page 4 of the Lexis print-out ) as follows :

“	The law on the responsibility of carriers of passengers for hire for injuries received by a passenger from slipping in the aisles of the conveyance on account of a banana peel or other foreign substance therein, is stated in 13 Corpus Juris Secundum, Carriers, p. 1400, §744, subd. c., as follows:
	"	While the carrier's employees have a duty to remove objects from the aisles and platforms of the vehicles when they have notice thereof, the carrier is not liable for injuries occurring where a passenger slips on a foreign object, such as a banana peeling, etc., or trips over an object in the aisle of the car, such as a hassock or piece of baggage, etc., unless its employees placed it there or had an opportunity to notice the presence of such object and remove it."
	The duty of a bus company to inspect its busses for the presence of such foreign substances is stated in 4 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., p. 30, at the end of Section 2167 as follows:
	"	Although bound to inspect its busses like any other common carrier, a bus company is not required to keep up a continuous inspection or to know at each moment the condition of every part of a bus."
	In the note at the bottom of page 30 the author cites in support of this statement of the law the case of Casale v. Public Service Co-Ordinated Transport, 160A. 326, 10 N.J. Misc. 611, the note reading as follows:
	"	Where a bus driver made a proper inspection of his bus before his trip began, the presence of a banana peel dropped by a passenger in the course of a trip, on which another passenger slipped, was not sufficient, unless reasonable opportunity for inspection on the trip was afforded, to charge the company with negligence."
	Of course, there is nothing in this case to show that the driver of the bus, or any other employee of the company, caused the banana peeling to be placed in the aisle of the bus, nor is there any evidence to show that the motorman knew, or had reasonable notice that it was there, and then failed to remove it.”

13. And at page 5 of the Lexis print-out he said:

“

And, as was said by this court in the recent case of Hughes v. Baton Rouge Electric Company, La. App., 188 So. 473, where a passenger is injured by the operation of a bus, the burden is thrown on the bus company to show that it was free from negligence in the operation of its bus, although it is not required to show how the accident occurred or whose fault brought it about.

However, the rule is different where the injury results from some foreign substance placed in the aisle or on the floor of the conveyance by some third person, in which case the plaintiff must show that the foreign substance was placed there by anemployee of the carrier, or that the employee knew, or by the exercise of proper care and diligence, should have known of the presence of such foreign substance and failed to remove it.  Windham v. Atlantic Coast Line R. Co., 71 F.2d 115, 5 Cir.,; Old South Lines, Inc., v. McCuiston, 92 F.2d 439, 5 Cir.”

14. In Enette Alexander v Continental Southern Lines Inc 130 So. 2nd 539, 29 June 1961 it was held that a presumption arises that a carrier has been negligent in the furnishing of a safe conveyance for transportation where an accident occurs from some defect in the vehicle or its equipment, and unless the carrier can exculpate itself from any negligence in that respect, it will be held liable.  A presumption of the carrier’s negligence does not arise simply from the presence of a foreign substance placed in the aisle or on the floor of the conveyance by some third person.  In such instances, the plaintiff must show that the substance was placed there by an employee of the carrier, or that an employee knew or by the exercise of reasonable care and diligence should have known of the presence of such foreign substance and failed to remove it.

15. Both Jones and Enette Alexander clearly show that where the driver had no knowledge and could not reasonably be expected to detect the presence of the foreign object on the bus, no presumption of negligence will arise.

16. It is also common ground that the principle set out in the judgment of Megaw LJ in Ward v Tesco Stores Ltd [1976] 1WLR 810 at 815 was applicable, namely:

“	It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault.”

17. The mere fact of the occurrence of the accident is not sufficient to give rise to a presumption of negligence on the part of the defendant.  The burden of proof is on the plaintiff to show on a balance of probabilities that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault.  If, and only if, the plaintiff proves that the unusual event is more consistent with fault on the part of the defendant than the absence of fault, the evidential burden then shifts to the defendant to show, on a balance of probabilities, that the accident happened without negligence on its part.

The issues

18. The issues are :

(1)	has the plaintiff discharged his burden of proof to show, on a balance of probabilities, that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault?
	If the answer is ‘no’, then the plaintiff’s claims fail and the other issues do not arise.
	If the answer is ‘yes’, then :
(2)	has the defendant discharged its evidential burden of showing, on a balance of probabilities, that the accident happened without negligence on its part?
	If the defendant is found to be liable, then :
(3)	was the plaintiff guilty of contributory negligence?

The witnesses

19. I heard evidence from the plaintiff and an independent witness Chan Chi Kin (“Chan”) who was a passenger in the upper deck of the bus at the time.  I also heard evidence from Lam Sai Wan (“Lam”) who was the bus captain and driver of the bus at the time.  Ho Kit Ying (“Ho”), the defendant’s senior manager of the maintenance section of the defendant’s Kowloon Bay depot also gave evidence before me as to the defendant’s system of cleaning and inspecting buses.  Much of the evidence is not disputed.  I am satisfied that the witnesses gave their evidence honestly and tried their best to recall what happened over five years ago.

The evidence and findings

20. The plaintiff gave evidence that he boarded the bus at the first stop after the Po Lam terminus at about 7:55 pm on 12 October 2002.  He paid his fare and went upstairs to the upper deck.  He was the first person to go to the upper deck at that stop.  He recalled that there were three to four persons on the upper deck but he said that there was no one at the rear of the bus.  This is contrary to what the independent witness Chan Chi Kin (“Chan”) said.

21. The plaintiff said that he walked for about 2 steps towards the rear of the bus.  He saw that there were two small cylindrical batteries which were of a size of either 2A or 3A towards the rear of the bus.  The batteries were rolling from the back of the bus towards him.  Less than a second after he saw the batteries he fell.  He said that he suddenly stepped on a small round object.  This caused him to fall to the floor and lose consciousness.

22. Chan gave evidence that at about 7:55 pm on 12 October 2002 he boarded the bus at the Po Lam terminus.  He went to the upper deck and took a seat which he had marked on the plan annexed to his witness statement.  This was on the left side of the bus near the staircase.  He was sitting sideways leaning against the window.  He was the first passenger on the upper deck.

23. Although in his witness statement dated 2 May 2006 Chan said that 2 to 3 passengers also got on the bus at the Po Lam terminus and that he could not recall where they took their seats, he confirmed in cross-examination that when he was interviewed by the plaintiff’s solicitors in June or July 2005 he had told them that he recalled that there were about 2 to 3 passengers who had also got on to the upper deck of the bus at the Po Lam terminus but that they had all gone to the back of the bus to get a seat.  It seems to me that his recollection in June or July 2005 would have been more reliable than his recollection at the time of his witness statement in May 2006.  I accept that there were 2 to 3 passengers who also got on to the upper deck at the Po Lam terminus and that they all went to the back of the bus to get a seat. 

24. I accept Chan’s evidence.  I prefer Chan’s evidence to the plaintiff’s evidence as to whether there were passengers at the rear of the bus when the plaintiff got on to the upper deck at the first stop.  Save for this, I also accept the plaintiff’s evidence.  I find that there were 2 to 3 passengers who also got on to the upper deck of the bus at the Po Lam terminus and that they all went to sit at the back of the bus.

25. Chan also said that he heard some sound or noise and he explained that when the bus was in motion it seemed that there were some items or objects rolling on the floor of the upper deck.  He also said that he heard that sound on the first leg of the journey from where he got on the bus to the first stop.  He did not hear anything else.  I accept his evidence.

26. Chan saw the plaintiff arriving on the upper deck of the bus at the first stop after the Po Lam terminus.  He said that the plaintiff was going towards the rear of the bus.  He saw him take 3 steps before he fell over.  He saw him fall and the plaintiff was lying on his back.  The other passengers notified the bus driver to stop the bus which he did.  Chan called the police.  He saw the plaintiff lying on the floor and he was unconscious.  He also saw a 2A size battery lying near the plaintiff’s foot. 

27. Lam is an experienced driver with around 18 years driving experience.  He joined the defendant as a bus captain in 1998 and is still working as a bus captain for the defendant.  Lam gave evidence that he was driving the bus on Route 93K on 12 October 2002 and he had been driving on that route for a few months prior to the accident.

28. Lam also gave evidence that buses leave the terminus at a designated time.  Before that time and for a few minutes prior to departure he opens the door of the bus and lets passengers in for about 3 minutes with the engine running and the air-conditioning switched on.  Passengers get on at the front door where they pay their fare and work their way into the bus either on the lower deck or climbing the stairs to the upper deck.  Lam followed this procedure every time he drove the bus on that route.  I accept his evidence.  I find that he followed his usual procedure by leaving the door open and letting in passengers for about 3 minutesbefore the departure time of 7:50 pm on 12 October 2002 at the Po Lam terminus with the engine running and the air-conditioning switched on.

29. The bus arrived at the first bus stop at about 7:55 pm, so the trip to the first stop took about 5 minutes.  Lam also said that around 3 passengers got on at the first stop which must have included the plaintiff.  It appears that all 3 passengers must have gone on to the upper deck as from the defendant’s traffic accident inspection report it seems that two ladies got on the bus at the same stop as the plaintiff and were following him up to the upper deck.

30. Lam said that after the passengers boarded the bus at the first stop after the terminus he drove away.  Not far from the bus stop however, someone told him that a passenger on the upper deck had fallen.  He then stopped the bus and went to the upper deck.  He remembered that there were about 10 passengers on the upper deck.  On this evidence it would mean that there were more passengers who got on to the upper deck at the Po Lam terminus than what Chan said.  However, in my view, Chan’s evidence on this is more reliable as he was on the upper deck throughout.  I prefer Chan’s evidence on this. 

31. Lam also said that he saw the plaintiff lying unconscious on the ground of the upper deck near the staircase.  He called the police.  He also remembered seeing a small battery on the aisle near the shoulder of the plaintiff.

32. On the plaintiff’s evidence, which I accept, I find that the plaintiff saw 2 batteries rolling towards him from the floor at the rear of the bus as he was walking for about 2 steps on the upper deck towards the rear.  I have no hesitation in finding that the plaintiff stepped on a small cylindrical battery, either a 2A size or a 3A size battery which was on the floor of the upper deck as he was walking towards the rear and which caused him to fall and sustain his serious personal injuries.  

The defendant’s system of cleaning buses

33. Ho gave evidence of the defendant’s system for the cleaning of buses at the time of the accident which I accept.  The defendant employed its own cleaning workers who worked from 8 am to 5 pm each day.  They would clean the buses whenever it arrived at a terminus.

34. Ho also said that bus captains would also inspect the bus to see if passengers left any items on board and to clean the bus.  He said that the bus captains were supposed to remove the items that are removable like plastic bags, glass bottles and large sheets of newspapers.  It was their responsibility to keep the buses clean when the cleaners were off duty.  He said that the cleaners were required as part of the cleaning operation to sweep the floors of the upper and lower deck of buses including the staircase and they would also sweep under the seats of the buses.  Bus captains, he said, were not told to inspect under the seats when inspecting buses for cleanliness.  He accepted that the scope of cleaning carried out by cleaners was different than that carried out by bus captains.  Cleaners were required to do the cleaning job thoroughly with the necessary equipment and tools unlike bus captains.  He said that bus captains were not provided with gloves, garbage bags or rubbish bins but bins were provided at the terminuses.  He said that as far as bus captains were concerned they were asked to perform the cleaning job to a reasonable degree in that no items which would pose a danger to passengers would be left there.  

35. Ho also said that from his personal experience on bus journeys passengers did leave items like glass bottles and soft drink cans on buses.  Ho frankly accepted that if bus captains were not told to look under the seats for such items left on buses they would not be able to remove such items if left on the bus under the seats.  

36. The same system of cleaning and inspection of buses was employed for all of the defendant’s buses in all its depots in Hong Kong and Kowloon.  In all his time with the defendant since 1994 Ho said that he had never come across a passenger falling over on something left on a bus.

37. Ho also said that a survey on cleanliness of buses was conducted among bus captains in late 2001.  It was found that about 100 buses were found to be unclean.  This led to the extension of the working hours for the cleaning workers to 9 pm for the buses on the unclean routes from early 2002.  However, buses on route 93K were not affected as the buses on that route were not found to be unclean.  On the evidence, cleaning workers were not required to clean the bus after 5 pm on the day of the accident.

38. Lam also gave evidence about the system of the cleaning of buses and the inspections of the bus made by him as a bus captain.  He said that when he received training at the training school of the defendant he was taught that as a bus captain he had to inspect the bus compartments whenever the bus arrives at a terminus.  He was taught to inspect the upper and lower decks after passengers alighted at a terminus to make sure that all passengers have alighted and that no one left anything behind and to also inspect the bus for cleanliness.  He would walk slowly along the aisle from the front to the rear of the bus, look left and right at the seats and the floor.  However, he was not required to look under the seats of the bus.  He also said that if there were some movable object such as bottles or soft drink cans, he would remove them.  If there were something difficult to clean like vomit, he would report it to the terminal supervisor immediately who would arrange for cleaners to clean it up or for another bus to be used.  

39. Lam also said that prior to the accident he had never experienced a person slipping and falling on a bus he was driving.  He said that as part of his training he was supposed to remove soft drink cans, plastic bags, newspapers.  Chan noticed that there was rubbish lying on the floor of the upper deck.  He explained that the rubbish that he noticed was paper and tissues.  He had also seen one or two bits of paper or tissues on the staircase as he was going upstairs to the upper deck.  The fact that there was a few sheets of tissue paper on the upper deck and staircase as found by Chan when he boarded the bus does not mean that Lam did not do his job of inspecting the bus properly.  He was not required to clean the bus to the same extent as cleaning workers were required to.

40. Lam explained that if the bus arrives at a terminus and if it was only after a relatively long time that he would drive the bus again for instance, after meals or before the first run in the morning, the bus captains were required to inspect the bus once more before the passengers board the bus.  

41. Lam’s evidence as to what bus captains were taught and what they were required to do was confirmed by Ho.  I accept Ho and Lam’s evidence on the defendant’s system of cleaning buses.

Inspection of the bus by Lam

42. Lam said, and I accept, that on 12 October 2002 the bus arrived at the Po Lam terminus at about 6:45 pm.  It left the Mongkok terminus after 5 pm when cleaning workers had already gone off work for that day.  After arriving at the Po Lam terminus and after the passengers got off he inspected the bus.  He inspected the seats and the floor of the bus compartments but he did not find any object and he did not find any battery there.  He then closed the bus and went for dinner.  After dinner he went back to the Po Lam terminus at around 7:40 pm and went into the bus, switched on the lights and inspected the bus again.  He did not find any battery there.  I accept his evidence and find that on his two inspections at the Po Lam terminus he did not find any battery on the floor of the upper deck.  However, he did not inspect underneath the seats and if there were a battery hidden underneath a seat, he would not have seen it.

Issue (1)

43. The slip and fall of the plaintiff by stepping on a battery on the upper deck of the bus was undoubtedly an unusual event. But the plaintiff must go further before the evidential burden of showing that the accident happened without negligence on its part is shifted to the defendant.  The plaintiff must also prove, on a balance of probabilities, that in the absence of explanation the event is more consistent with fault on the part of the defendant than the absence of fault.  

44. Ms Lee, for the plaintiff, accepted that unless the plaintiff can show that the event is more consistent with fault on the part of the defendant than the absence of fault, the plaintiff’s claims fail.  She submitted that to do this the plaintiff has to persuade the court that the defendant or its employee knew, or by the exercise of proper care and diligence should have known, of the presence of the battery and failed to remove it.  She accepted that if the battery was discarded by a passenger who boarded the bus at the Po Lam terminus after Lam’s inspection of the bus, Lam would not have known of its presence irrespective of proper care and diligence while inspecting the bus at the Po Lam terminus.  In that event, she accepted that the plaintiff’s case failed.

45. It seems to me that there are only two possibilities as to when the battery which the plaintiff stepped on was discarded, either :

(1)	before the final inspection by Lam at the Po Lam terminus; or
(2)	after the final inspection by Lam at the Po Lam terminus.

46. It is for the plaintiff to prove that the battery was discarded before the final inspection by Lam before the evidential burden is shifted to the defendant to show that the accident happened without negligence on its part.  

47. The sound that Chan heard of something rolling on the floor was probably the sound of the batteries which had been discarded on the floor of the upper deck and I so find. 

48. Ms Lee submitted that the evidence shows that the batteries were on the floor of the upper deck before the bus left the terminus as Chan heard the sound or noise of something rolling on the floor when the bus was in motion.  She further submitted that as Chan did not hear any other sound, it is likely that the batteries were discarded before and not after the final inspection by Lam. 

49. I am unable to accept Ms Lee’s submissions.  It is clear that Chan did not say that he heard the sound of something rolling on the floor as soon as the bus was in motion.  Chan also said that he heard that sound during the first leg of the journey from where he got on the bus to the first stop.  It seems to me that the batteries could have been discarded by someone at the rear of the bus on the upper deck at any time during that trip whilst the bus was in motion. 

50. Even if Chan’s evidence can be regarded as evidence that he heard the sound of something rolling on the floor as soon as the bus was in motion, someone at the rear of the bus on the upper deck could still have discarded the batteries after the final inspection by Lam.  Lam said, and I accept, that he followed his usual procedure of allowing passengers to board about 3 minutes before departure with the engine running and the air-conditioning switched on.  The fact that Chan did not hear any other sound provides no assistance.  The engine of the bus was running at the time together with the air-conditioning switched on.  Someone at the rear of the bus on the upper deck could have discarded the batteries on the floor without Chan hearing it from where he was sitting.  After all, Chan was on an ordinary bus trip minding his own business and not paying any attention to what anyone else was doing.  In my view, if someone at the rear did discard the batteries it would not be surprising if Chan did not hear that.

51. It is incumbent on the plaintiff to prove that the batteries were discarded before the final inspection of the bus by Lam.  The plaintiff has failed to satisfy me on a balance of probabilities that the battery that the plaintiff stepped on was on the floor of the upper deck before the final inspection by Lam at the Po Lam terminus.  It could just as easily have been discarded after his final inspection by 1 of the 2 to 3 passengers who got on at the Po Lam terminus and sat at the rear of the upper deck.

52. I am not satisfied that the plaintiff has proven that the discarded battery was on the bus before the final inspection by Lam at the Po Lam terminus.  The answer to issue (1) is “no”.  The plaintiff has not discharged his burden of proof to show that the unusual event is, in the absence of explanation, more consistent with fault on the part of the defendant than the absence of fault.  That being so, the evidential burden to show that the accident happened without negligence on the part of the defendant does not shift to the defendant.  The other issues do not arise.  The plaintiff’s claims fail.

53. I have considerable sympathy for the plaintiff as he sustained a serious injury whilst stepping on a battery on the bus.  However, I am unable to find liability on the part of the defendant.

54. The plaintiff’s claims are dismissed.

55. I also make an order nisi that :

(1)	the costs of the action be costs to the defendant; and
(2)	the plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.