LAM PIK KUEN v. LEE FAI MING AND ANOTHER

HCPI 7/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.7 OF 1998

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J U D G M E N T

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BACKGROUND

1. These proceedings arise out of an accident which occurred on 9 February 1996 as the then 45 year-old plaintiff disembarked from a Route 38 bus driven by the 1st defendant and owned by his employer, the 2nd defendant, as she was returning home from her job as a pantry maid at a restaurant. As she disembarked, the exit door of the bus closed upon a bag she was carrying and subsequently the plaintiff fell to the ground after the bus started off from the bus-stop. It is not disputed that the fall caused her to sustain injuries to her pelvis, though the extent of those injuries are in dispute.

THE PLEADINGS

2. The plaintiff alleges negligence on the part of the 1st defendant and breach of a statutory duty contained in Regulation 11(1)(d) of the Public Bus Services Regulations to Cap.230. The plaintiff alleges, which was accepted at trial, that the 2nd defendant is vicariously liable for any such negligence or breach of statutory duty by the 1st defendant.

3. By her pleadings, she relies upon the 1st defendant's conviction of the offence of failing to ensure the safety of a passenger, contrary to Regulation 11(1)(d) of the Public Bus Services Ordinance, Cap.230 which conviction arose out of this incident.

4. The plaintiff alleges that both pubic rami bones on the left side of her pelvis were broken as the result of the accident, together with soft tissue injury and that she has suffered permanent impairment. She claims special damages of which only her claims for the expenses of private doctors and chinese medicines remain in dispute, and general damages relating to PSLA and Loss of Earning Capacity, both of which are in dispute. There is no claim for Loss of Future Earnings as the plaintiff returned to regular work following her discharge from sick leave.

5. The defence of both defendants denies negligence or breach of statutory duty and avers that the accident was caused by or contributed to by the plaintiff's own negligence in rushing off the bus at the last minute through doors which were about to close or were closing.

LIABILITY

The plaintiff's case

6. The plaintiff gave evidence. She said that on the night of the accident she had been returning home from her work at a restaurant in Hang Fa Chuen on the defendants' bus with a colleague. She said as the bus approached her stop near the Hennessy Road Fire Station, she and her colleague left the upper deck of the bus where they had been sitting. They went down the staircase to the lower deck where, together with one to two other passengers, they waited next to the exit door until the bus stopped and the door opened. She said the group then alighted. She was the last one out and as she got off the bus, her bag was trapped by the closing door and she was pulled along by the bus for a few paces until she fell down.

7. In cross-examination, she denied she had been asleep on the upper deck of the bus, awoken late and had to run downstairs and then ran through the closing door of the bus. She agreed in an earlier statement to the police she had said words to the effect she had no witness to the accident. She agreed she had not mentioned the presence of her colleague in her statement to the police. She said she had not been asked about this and did not know how to express herself.

8. That was the only evidence as to the issue of liability called by the plaintiff.

The defendants' case

9. The defence, on this issue, also called only one witness, a passenger, Mr Cheng Lik Him.

10. He was also returning home from work at the time of the accident on board the Route 38 bus, on which the plaintiff was a passenger. He was sitting on the lower deck of the bus, on the right side and about two to three rows to the rear of the staircase. He was about five to six feet from the exit door.

11. He said the bus eventually stopped at the Hennessy Road Fire Station bus-stop and a group of passengers got off. He said he then heard hasty footsteps from the staircase and saw a lady go through the closing door of the bus. The bus then started to move off from the bus-stop but stopped shortly after someone shouted that a person was trapped. He then saw a lady sitting on the ground. The driver got off the bus and subsequently police were called. The police took his name as a witness.

12. According to Mr Cheng's evidence, the particular bus had a wing mirror on the outside near the front entrance door and another mirror inside the bus. He said there was no obstruction to the driver seeing the exit door of the bus. He agreed that when the woman whom he had heard coming down the staircase of the bus had arrived at the bottom of the staircase the exit door of the bus was still open and the bus was still stopped. He said he saw the woman go through the exit door and that, as she did so, it closed. He said the distance from the bottom of the staircase to the exit door was only three feet. Once the woman had gone through the exit door, he had not seen at the time that her handbag was trapped.

13. That was the only evidence as to liability called by the defendants.

14. There was, however, agreement between the parties as to two facts : firstly, that the 1st defendant had manual control over the mechanism which opened and closed the exit doors of the bus and, secondly, that there was a "periscope" device available to the 1st defendant as driver of the bus through which the upper deck of the bus could be viewed.

ASSESSMENT OF THE EVIDENCE

15. The plaintiff struck me as being somewhat unreliable as a witness. Her evidence on occasion seemed confused and out of sequence. She struck me as being prepared to exaggerate certain parts of her evidence in order to improve her case. For example, in describing her present physical state, she said she had difficulties squatting and changing posture. This was in contrast to the observations of both her own and the defendants' examining specialists. She said she related these matters to the examining doctors. In their evidence neither found any impairment to her in this regard or recorded any such complaint.

16. Further, her statement to the police that she had no witness to these events contrasted with her evidence in court concerning the presence of a work mate and travelling companion, Madam Chow, who also alighted at the same bus-stop and with whom, in evidence, she said she descended the staircase.

17. In short, I have reservations about the reliability of the evidence of the plaintiff.

18. Mr Cheng, on the other hand, struck me as a careful and conscientious witness. I accept that he was an independent witness in the sense that he had no reason to show favour in his evidence either to the plaintiff or the defendants.

19. He gave his evidence in a clear and consistent manner. He was straightforward. He did not guess but restricted his evidence to that which he had observed.

20. From his evidence, I accept that the plaintiff was not waiting at the exit door of the bus as it approached the Hennessy Road Fire Station bus-stop. I accept from Mr Cheng's evidence that the plaintiff, for whatever reason, did come down to the lower deck of the bus at a later stage than she said in her evidence, and only arrived there after the exit door had already opened. In my view, Mr Cheng's evidence was convincing in that regard.

21. But that is not the end of the matter. I accept also from Mr Cheng's evidence that when the woman, who I accept must have been the plaintiff, arrived at the bottom of the staircase of the bus, only some three feet from the exit door, the bus was still stationary and the exit door was open. From Mr Cheng's evidence, that door did not close or start to close until the plaintiff was proceeding through it.

CONCLUSIONS

22. From the admitted facts, it is apparent, and I accept, that the 1st defendant had personal control of the operation of the exit door. From the evidence of Mr Cheng, it is apparent, and I accept, that there was nothing to interrupt the driver's view inside the bus to the exit door. He had a mirror in addition to his direct view in this regard and that there was an external mirror which could, if required, give him a view of the outer left side of the bus as well.

23. Further from the admitted facts, I accept that the 1st defendant, through the "periscope" device above him, had a view of the upper deck of the bus. In my view that means he was in a position to see that passengers were in the process of leaving the upper deck to disembark.

24. I bear in mind that a bus driver has a duty to take reasonable care for the safety of his passengers when they are alighting. There is no evidence before me of what, if any, steps the 1st defendant took to ensure the safety of his disembarking passengers. In particular, there is no evidence as to what use if any the 1st defendant made of the mirrors available to him or as to why he closed the exit door when he did. In my opinion, it matters little that the plaintiff attempted to disembark from the bus later than other passengers. A bus driver must expect, on occasion, the late arrival of one or more passengers at the exit door of a bus. This is particularly so when the vehicle is a double-decker and passengers must on occasion come from the upper deck.

25. It seems plain to me that the 1st defendant should have been, and obviously was not, keeping a proper watch over the exit door area to ensure that when he closed the door there was no passenger attempting to disembark through the doorway at the time. He should have, and did not, ensure so far as he reasonably could that when he closed the door all passengers were clear of the doorway.

26. I am satisfied further that the 1st defendant before attempting to drive the bus away from the bus-stop should have taken steps so far as he reasonably could, to ensure that all passengers were clear of the bus itself.

27. In my judgment, the 1st defendant failed in his duty of care to the plaintiff in both these respects. To take such steps so as to ensure the safety of the plaintiff in the circumstances was relatively straightforward. The 1st defendant simply had to look in his internal mirror or glance over his shoulder to be able to get a clear view of the exit door, and so be able to close it after the area was clear of disembarking passengers. He had the benefit of the periscope device to be able to see that passengers on the upper deck of the bus were moving to the lower deck. Further, he simply had to look at his external mirror to have a view of the outside of the bus and be sure all passengers had cleared the body of the bus before proceeding.

28. On the evidence, the plain inference is that the 1st defendant failed to take these fundamental precautions and in so doing, was in breach of his duty of care to the plaintiff, and in breach of Regulation 11(1)(d) of the Regulations to Cap.230.

29. I am satisfied that the plaintiff has made out her claim in negligence against the 1st defendant and her claim for breach of statutory duty as pleaded. That breach of the 1st defendant's duty of care and breach of his statutory responsibilities caused the plaintiff to be caught by the bus door and injured. That consequence must have been foreseeable to the 1st defendant, and indeed, this was never in issue in this case.

30. In arriving at these conclusions, I have also taken into account the 1st defendant's conviction on 2 September 1996 at Western Magistracy of the statutory offence of failing to ensure the safety of a passenger, contrary to Regulations 11(1)(d) and 25(3) of the Regulations to the Public Bus Services Ordinance, Cap.230.

31. From the agreed brief facts of that case, the 1st defendant admitted that "... as soon as the (plaintiff) had stepped onto the ground the defendant closed the vehicle door and drove off ...". I take from that, together with the 1st defendant's plea of guilty to the offence, support for my findings that the 1st defendant did not reasonably check that the plaintiff had cleared the bus before driving off. Those facts admitted by the 1st defendant were not, in my view, overturned by the defence case.

THE PLAINTIFF'S CONTRIBUTORY NEGLIGENCE

32. The evidence of Mr Cheng which, as I have said, I find more reliable than the plaintiff, is to the effect that the plaintiff made a dash for the exit door of the bus. But his evidence was that when the plaintiff had arrived at the lower deck of the bus, she was about three feet from the exit door which was still open and the bus was stationary. He said that the exit door started to close as she was going through. He did not notice her having to hold the door open so as to be able to get through.

33. His evidence was she dashed through the doorway and that she had come down from the upper deck hurriedly. She had exited at some time after the other passengers. That is as far as the Defence evidence went in so far as the claim of contributory negligence was concerned. The plaintiff effectively denied any circumstance or acts by her amounting to negligence in her evidence.

34. In my view there is, even accepting Mr Cheng's evidence, insufficient to establish contributory negligence on the part of the plaintiff. I am satisfied that she was hurrying down the staircase of the bus. But at the time she arrived at the bottom of that staircase, a short distance from the exit door, it was still open and the bus was still stationary.

35. In my view, she was entitled in these circumstances to proceed to disembark. The exit door did not start to close, according to Mr Cheng's evidence, until the plaintiff had started to go through the doorway. That means that as she started to go through the doorway it was still open. In those circumstances, I do not think there was any duty incumbent upon the plaintiff to alert the 1st defendant that she was proceeding or intended to proceed through the doorway.

36. In my view, particularly in circumstances where the exit door was operated by someone under a duty to take reasonable care in its operation so as to ensure the safety of passengers, there is simply insufficient evidence to establish any contributory negligence on the part of the plaintiff.

QUANTUM

37. Following the accident, the plaintiff was taken to Tang Shiu Kin Hospital where she was examined and found, following X-ray, to have suffered a fractured left superior and inferior pubic rami. This was not in issue.

38. She was treated and discharged on 17 February. At that time, she had recovered sufficiently to be able to walk slowly with the aid of a quadripod. She complained of pain on her left groin. She received follow-up orthopaedic treatment at Tang Chi Ngong Clinic and was given sick leave until 4 June, after which she was able to return to work.

39. She was examined by Dr Danny Tsoi on 23 September 1997 and again on 13 February 1999. She was further examined by Dr Lam Kwong-chin on 5 November 1995. For the purposes of these examinations, further X-rays were taken of the plaintiff's pelvis.

40. The significant findings of Dr Tsoi were that the left superior and inferior pubic rami bones had been fractured but had healed satisfactorily. He found the plaintiff complained of tenderness when the sacroiliac joint of her pelvis was palpated and when the left pubic rami area was palpated, though there was no injury in the sacroiliac joint revealed by the X-rays. Dr Tsoi found a full range of movement so far as the plaintiff's hip was concerned with an ability to squat down fully and walk with a normal gait. She experienced no difficulties with changing posture. He did find, however, that her pubic symphasis, a cartilaginous or fibrous union of the frontal pelvic girdle was irregular. This would explain her complaints of left groin pain. His findings were that her complaints of pelvic and other pain were consistent with her injuries and that those injuries at the time of his examinations were stabilised. In his view, the residual pain felt by the plaintiff emanated from soft tissue injury and that injury was permanent.

41. In his view, the residual pain would likely render the plaintiff unable to stand continuously for more than three to four hours at a time without 10-15 minutes rest and the plaintiff was unfit for heavy work. She was fit for light to moderate work.

42. Dr Lam agreed in the main particulars with Dr Tsoi. He joined issue however with Dr Tsoi's conclusion that the irregularity in the pubic symphasis could account for the complaint of left groin pain. In his view, any injury to the pubic symphasis would result in pain being experienced, if at all, from the middle lower torso. He suggested, though there was no evidence to this effect, that the pubic symphasis irregularity could have been caused by some earlier incident including childbirth.

43. The plaintiff, in her evidence, agreed she went back to work at her old job of "pantry maid" following the end of her sick leave. This job entails her delivering food from the kitchen to customers' tables in the restaurant in which she works. She said she walks a lot at work and felt pain frequently in her waist and leg and also when sitting. She claims to feel additional pain when menstruating and when having sex. She described herself as having to walk in a crippled manner on occasion and said she had difficulty in squatting and changing her posture. Although she said she related her difficulties in squatting and changing posture and walking to the examining doctors, neither Dr Tsoi nor Dr Lam recollected this and both found she had no difficulties in this regard.

44. In my view, the plaintiff has exaggerated her evidence before me in respect of the effect of her injuries also. She, in her evidence, gave details of symptoms neither Dr Tsoi nor Dr Lam had heard of from her.

45. Accordingly, I approach the plaintiff's evidence in this regard with some caution. I accept however from the evidence of both Dr Tsoi and Dr Lam that she has had some permanent impairment. Dr Tsoi, because of his finding that the irregularity in the pubic symphasis may well cause degenerative changes in the pelvic area and pain, assesses her whole person disability at about 7%. Dr Lam, who discounts any symptom as assessing from that irregularity, assesses her disability as being 1%.

46. In my view, Dr Tsoi's view is to be preferred. He carefully explained how the force sustained by the pressure to the left side of the pelvic girdle could result in a displaced pubic symphasis. Dr Lam simply said he did not think the force sustained would be sufficient. He said it would require considerable force, greater than that required to break the two pubic rami bones to displace the pubic symphasis.

47. I accept Dr Tsoi's evidence in this regard. It was logical and coherent. It was based on the findings of his examinations of the plaintiff. Dr Lam's assessment of the pubic symphasis displacement did not seem to me as logical. In my view, considerable force did exist at the time of the plaintiff sustaining the injuries to her pelvis. Both pubic ramis on the left hand side of her pelvis were fractured. On balance I found Dr Tsoi's evidence of the consistency between her complaints of types of pain and her injuries when he examined her as convincing.

PSLA

48. I accept from the evidence of Dr Tsoi that the plaintiff will have a continuing and significant disability in the sense she will suffer pain in future and be less able to walk, stand and carry heavy objects. The comparable cases I have had provided to me or relied upon in the course of argument are :-

1. Ip Yiu Fai v. Chan Che Kwong, HCPI 445/98 which involved a stable hand who fractured the rim of his pelvis when a horse fell on him. The effects of the injuries involved in that case were, in my view somewhat more serious than the present case.

2. Fan Shuit Lui v. Shing Wah Chai, HCPI 6239/1984 involved injuries sustained by the plaintiff as the result of being run over while changing a flat tyre. The injuries in that case were significantly more serious than those in the present case, and it is only of marginal assistance as a comparable case.

3. Ip Lam Yuk Lin v. Yeung Fat [1991] 2 HKC 480 related to a fractured femur and a fractured radius. It is of some assistance as a comparable case in this regard.

4. Wong Yiu Tsang v. Yeung Ching Kit, HCPI 4281/83 is perhaps somewhat dated. The facts involved the plaintiff suffering fractured superior and inferior pubic rami of the right side of the pelvis though from the accepted facts she suffered no permanent impairment after sick leave of six months.

49. In Cheuk Wai Chi & Law Siu Ping v. Kwong Cheuk Kai, HCPI 92/1982 (a consolidated case), one of the plaintiffs suffered a fracture to the left superior pubic ramis and continuing pain. Other comparable cases were cited in that judgment which also related to injuries sustained to the pelvis and in particular to the pubic rami and I take those cases into account.

50. In my judgment, the plaintiff's injuries fall well below the category of serious injury as propounded in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. Bearing in mind the revised amounts established by Chan Pui Ki v. Leung On [1996] 2 HKLR 401 and accepting the arguments advanced by the plaintiff based on the Hong Kong Monthly Digest of Statistics as to inflation since Chan Pui Ki, I award a sum to the plaintiff of $150,000 for pain suffering and loss of amenities.

SPECIAL DAMAGES

51. Some special damages claimed are agreed. They are :-

Hospitalisation Expenses	$563.00
Travelling Expenses	$800.00
Accrued Loss of Earnings	$38,000.00

They are awarded.

52. A further aspect of special damages is in issue :-

Private medical expenses

53. The plaintiff claims $21,039.50 as the expenses for private doctors and medicines. Radiographic and other medical expenses to an amount of $750 are agreed as appear at Ex 62 & 63 of the Agreed Bundle. That leaves in issue $20,289.50 as private medical expenses. The defendants agree that that money has been spent on some form of medical expenditure as evidenced by the receipts at Ex 92-99 of the Agreed Bundle, but assert there is no sufficient supporting evidence to establish that this expenditure was reasonably beneficial or was properly incurred.

54. The sole evidence relied upon by the plaintiff is her own to the effect she had these treatments, which consisted of acupuncture, bone setting and herbal medicines and that they were beneficial.

55. In Yu Ki v. Chin Kit-Law [1981] HKLR 419, Roberts CJ said as to a claim for expenses of Chinese medicine :-

"It is sufficient in my view if it is established that the cost of treatment was reasonable, that the plaintiff had some faith in its possible efficiency and that the money claimed was spent."

56. In King Light Industrial Ltd v. Lo Wai Keung [1994] 3 HKC 54 at 65, the views of Roberts CJ were adopted. Further consideration was given to quite convincing views expressed by the trial judge in that case as to the quite obvious principle that Chinese medicinal treatment of various kinds, given sufficient proof of its reasonably beneficial nature by someone who can provide such evidence, will be taken into account so far as any award in damages are concerned.

57. In both Yu Ki's case and King Light Industrial, the difficulty was that there was no sufficient evidence that the treatment was advisable or suitable. That was so in King Light even though a witness trained in western medicine said it was. The court did not accept that that training was sufficient to allow it to accept his views that the traditional Chinese medicinal treatment was beneficial in the case before it, particularly as he had not examined the plaintiff.

58. In the present case, there is no evidence other than the plaintiff's that she found the treatments beneficial. As I say I approach her evidence with caution. There is no evidence as to whether the expenditure was reasonable. No herbalist or Chinese medicinal practitioner was called. I am prepared to accept that the likelihood is that to some extent the plaintiff found the treatment in fact beneficial. It is hard to understand otherwise why she would have gone to such repeated lengths to obtain it. But I cannot accept from her evidence alone that the treatments and their expenditure was reasonable.

59. I adopt the course of Roberts CJ in Yu Ki v. Chin Kit Lin and award a nominal sum in the circumstances of this case of $200 per week over the period of the plaintiff's sick leave. That is, a total of $2,400 for the plaintiff's claim in respect of medical expenses and Tonic and Chinese food. In regard to her medical expenses, as I say a further amount of $750 has been agreed. That is a total of $3,150.

Loss of earning capacity

60. In Moeleker v. A. Reyrolle & Co. [1977] 1 WLR 132, it was said this head of damage is intended to compensate the claimant for any proven risk that he may lose his employment in the future and suffer financial loss because of his disadvantage in the labour market. That test has been adopted many times in Hong Kong. Each case must be considered on its own merits.

61. In the present case, the plaintiff, it is common ground, will require rest periods throughout her working day. She, I accept from the medical evidence, will not be able to lift as heavy loads as she did in the past. Given the working requirements of her present job, it seems to me that she must be at significant risk of losing that job. In as much both Dr Tsoi and Dr Lam suggest she will require rest periods and should not lift heavy loads, there is support for her evidence to the effect she gets some assistance or consideration from her workmates to perform her work. In my view, there is a real risk of her losing her job in those circumstances and of then being at some disadvantage in the finding of another. I assess this as being best compensated by an order of $40,000 under this head.

Summary of Damages

PSLA		$150,000
Loss of Earning Capacity		$40,000
Special Damages
	Hospitalisation Expenses	$563
	Travelling Expenses	$800
	Accrued Loss of Earnings from date of accident to plaintiff's return to work	$38,000
	Private medical, tonic and Chinese food	$3,150
	Total	$232,513
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As agreed, I order that interest run on the general damages at 2% from the date of service of the writ to the date of judgment, and that interest run on the special damages at half judgment rate from the date of the accident to the date of judgment. I make an order nisi that the defendants pay the plaintiff's costs, to be taxed in accordance with the Legal Aid Regulations if not agreed.