LEE SHUN MUI v. LAW LAI MING AND OTHERS

HCPI 901/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 901 OF 1996

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J U D G M E N T

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1. In this action, the Plaintiff claims damages for injuries she sustained six years ago on 23rd August 1993 after she had alighted from a tram at a non platform tram stop outside no. 289 Shaukiwan Road and when she was walking towards the pavement. The tram was driven by the 3rd Defendant and owned by the 4th Defendant. As she crossed to the pavement, the Plaintiff was struck by a private car being driven in the same eastern direction as the tram. The car was driven by the 1st Defendant and was owned by the 2nd Defendant, her husband.

2. The quantum of damages in this case is not in dispute between the parties. It has been agreed at $400,000.00 inclusive of interest.

3. The sole question, therefore, for the court is one of liability: where blame lies for this unfortunate accident. There is no dispute that 2nd Defendant would be vicariously liable for any negligence on the part of the 1st Defendant and the 4th Defendant would be vicariously liable for any negligence on the part of the 3rd Defendant.

4. That this accident occurred on the date in question at or at least in the vicinity of this particular tram stop is not in dispute. What have been in dispute are the events with preceded the accident and the legal consequences which follow.

The Plaintiff's account

5. At the time of the accident, the Plaintiff was 57 years old. She was travelling by tram to her home in Shaukiwan. Her evidence was somewhat uncertain as to whether she was in the middle or at the back of the lower deck of the tram when it stopped at the stop outside 289 Shaukiwan Road. A number of passengers alighted. Only after they had alighted did it occur to her that she wanted to do some shopping in a nearby market. She saw that the exit gate to the tram was closed so she shouted to the driver. He reopened the gate. She walked to the front of the tram and put her money in the box and got off the tram. In her evidence in court, she said that the tram had not moved from the place it had first stopped.

6. Her evidence was that as she stepped off the tram she looked to her left and saw that no vehicle was moving. After stepping on the roadway, she took another look and then took a second step. It was then that the car driven by the 1st Defendant drove over her foot.

The Account of 1st Defendant

7. In evidence in Court, the 1st Defendant maintained that the tram had first stopped and passengers had alighted at a position before the tram had reached the yellow line of the tram stop (i.e. before the designated tram stop). She maintained that she had stopped her vehicle to the left of the tram behind the English and Chinese lettering in the road about 10 feet from the yellow line. The tram had then set off. She had then moved off but because of boards lying by that the side of the road, she had been obliged to drive quite close to the tram. Suddenly, and unexpectedly the tram had stopped after passing the yellow line. She saw an old lady carrying a lot of bags alighting from the tram. She immediately braked and swerved to the left slightly but she clipped the Plaintiff's handbag and the Plaintiff fell between her car and the tram.

8. At first in cross-examination, she admitted that the location of the tram marked on the sketch plan drawn by PC 8790 was within the designated tram stop and she further admitted that since the tram had stopped for the second time within the tram stop, she should have stopped behind the yellow line. Later she said that while the rear of the tram was within the tram stop, the front of the tram had gone beyond it but she still thought it could be said that the tram had stopped within the designated area.

The Account of 3rd Defendant

9. The account of 3rd Defendant, the tram driver, was that he had stopped his tram within the designated tram stop about 2-3 feet beyond the yellow line and with its front about a foot beyond the white line painted on the roadway. He had checked in his rear view mirror to see that the traffic to the rear was stationary before opening the door for passengers to alight. About 7-8 passengers had alighted, one of whom was still in the course of doing so when an old woman (presumably be the Plaintiff) sitting on the left of the rear of the tram shouted that she wanted to alight from the tram as well. He had not closed the gate before the old woman had walked in a hurried pace down the tram and in his words "dashed down", from the tram without checking the traffic. After taking two steps, a private car had knocked the lady down. He maintained that his tram had never moved after it had first stopped to allow passengers to alight and that the Plaintiff had only alighted some 2-3 seconds after the persons who had alighted before her.

Assessment of the Evidence

10. I am satisfied that the position marked on the sketch of PC 8790 accurately reflected the position of the tram at the time of the Plaintiff alighted from it. Moreover, I shared his view that the position was an appropriate position for a tram to stop to allow passengers to alight. It was within the designated tram stop. Indeed the 1st Defendant herself did not appear seriously to dispute this. On the evidence before me I was satisfied that the white line marked in the road was probably nothing more than a guide to the tram driver indicating that if he stopped there then the rear of his tram would be beyond the yellow line. There is no question therefore of the 3rd Defendant having allowed the Plaintiff to alight at a place other than a designated tram stop and being thereby in breach of statutory duty under Regulation 4 of the Tramway Regulations (Cap. 107).

11. There was conflicting evidence as to whether the tram had stopped earlier to allow passengers to alight. The 1st Defendant has been consistent in alleging that it did. The 3rd Defendant had been consistent that it did not.

12. The Plaintiff has not been consistent. I heard evidence from PC 47713 and PC 8790 as to oral remarks made by her shortly after the accident indicating that the tram had moved off before stopping again.

13. PC 47713 who spoke to the Plaintiff as she sat in the road apparently in some pain conceded that the notebook he has used as the basis of his statement had now been destroyed and that he could not now remember whether the remarks he attributed to the Plaintiff might have come from the 1st Defendant. PC 8790 had spoken to the Plaintiff at Chai Wan Clinic just over an hour after the incident. Although I have no doubt that he honestly believes that the Plaintiff did say that the tram had moved off before stopping again, I have to bear in mind that all this happened six years ago, that he was speaking to a woman in considerable pain and that he had already heard the version of the 1st Defendant. It may be that he was influenced by what he had been told by 1st Defendant in his understanding of what the Plaintiff was saying. If the Plaintiff had said that the tram had moved off it seems curious that she should have said that she did not remember whether the tram had stopped earlier when she made her first written statement six days later. While it might be, as Miss Tsang suggests, that what she said in her written statement was an attempt either to minimize her own share of the blame for the accident or lay it more firmly on the 1st Defendant, it could just as easily be her considered view of what occurred having had 6 days to think the matter over. In Court, she maintained that the tram had not moved. Ultimately, in the light of all the inconsistencies in her evidence of this matter, I came to the conclusion that the Plaintiff's evidence provided me no assistance as to whether the tram had or had not moved earlier.

14. I therefore had to decide whether the version of 1st Defendant or 3rd Defendant was the more probable. I preferred the evidence of 3rd Defendant, the tram driver for a number of reasons. There was no apparent reason why the tram driver should have first stopped the tram in the position alleged by 1st Defendant. It would have been a considerable distance from where any passengers who might have been waiting to board the tram might have been. If there had been such passengers they would have had to not only walk some distance to the tram but also to avoid the wooden boards lying along the roadside. Furthermore, I find it curious, bearing in mind that she had been involved in an accident in which her vehicle had struck someone, that as late as 21st October 1998, she should make a witness statement for the proposes of these proceedings alleging that she had first stopped her vehicle in front of the yellow line if in fact she had, as she now alleges, stopped her vehicle further back.

15. I, therefore, find that the tram had not stopped and then moved off before stopping again to allow the Plaintiff to alight.

16. These non platform stops are particularly hazardous features of Hong Kong streets calling for a high degree of caution by those driving on the streets, by the drivers of trams and passengers embarking on or alighting from trams.

17. Drivers of vehicles must not for instance proceed beyond the yellow line in the street until they are sure that no further passengers will board or alight from a tram which has stopped at a designated stop. They cannot be sure until both the front and the rear gates of the tram are closed and the tram has moved beyond the designated tram stop.

18. Drivers of trams must take reasonable steps to ensure that their passengers do not alight when there is danger that vehicles will move between the tram and the nearest pavement.

19. Tram passengers should not in the words of the Road Users Code "Cross or leave the tram until (they) are sure it is safe to do so".

20. In my judgment, the predominant responsibility for this accident lies with the 1st Defendant. While I am satisfied that she did stop on seeing that the tram was setting down passengers, I find that she moved off before it was safe to do so, and in particular before she could be sure that no further passengers would alight from the tram. Even if the tram doors had been closed by the driver, she could not be sure until the tram moved off from the designated stop that the doors would not reopen and further passenger alight.

21. I nonetheless find that the 3rd Defendant must share part of the responsibility for what occurred. I did not accept his evidence that there was only 2-3 seconds between the previous passengers alighting and the Plaintiff alighting for the tram. I consider it much or likely bearing in mind that the Plaintiff only decided that she wanted to alight at a late stage, her age and the distance she had to move from where she was seating to the front of the tram that there was a fairly long lapse of time between her alighting from the tram and the last previous passenger to do so. While there might be circumstances in which a tram driver sufficiently discharges his duty to his disembarking passengers simply by checking before he opens the gate that any traffic proceeding in the same direction is stationary behind the yellow line, in circumstances such as these when there was a considerable lapse of time between the bulk of passengers alighting and a final passenger doing so the situation was different. He was under a duty to ensure that no driver who had been stationary at the yellow line or moving in the same direction had incorrectly assumed that no further passengers would alight. This is particularly so in the case where the final passenger to disembark was a relatively elderly person like the Plaintiff. I do not find he discharged his duty to the Plaintiff simply by checking his mirror before opening the gate to allow passengers to alight. If as he alleges he had only opened the gate once then he should have checked his mirror at the time of the Plaintiff was disembarking to ensure she was safe. If as the Plaintiff alleges he had closed the gate, he should not only have checked his mirror when he reopened the gate but ensured that no driver had mistakenly assumed from the closing of the gate that no further passengers would disembark. Again, he should have kept watch in his mirror as the Plaintiff disembarked.

22. I find on the other hand that the Plaintiff did not take all reasonable care of herself and contributed to some degree by want of care to her own injury. Bearing in mind the lapse of time between the time she alighted and the time she would have known previous passenger had done so, she should have taken care to ensure that previously stationary traffic had not started to move into the space between the tram and the pavement. The accident would not have occurred if she had, as she alleges, checked before stepping off the tram that no vehicle was moving and then checked again before taking a further step. Even bearing in mind she had to step down from the tram into the roadway and that manoeuvre would limit her opportunity to keep watch to the left, I am nonetheless satisfied that that would not have prevented her from keeping such watch on approaching traffic as would have enabled her to avoid such an accident occurring.

23. I apportion negligence as follows:

D1: 70%

D3: 20%

Plaintiff: 10%

24. I find that 2nd Defendant is vicariously liable for the negligence to the 1st Defendant and the 4th Defendant for the negligence of 3rd Defendant.

25. I accordingly give judgment for the Plaintiff against the D1, D2, D3 and D4 in the sum of $360,000.00 plus interest thereon at judgment rate from today until the date of payment.

26. I make the following order nisi as to costs which is to stand unless within 14 days of today, application is made by a party to be heard on the matter, namely that the Plaintiff's costs be taxed if not agreed and paid by the Defendants. Her own costs to be taxed under the Legal Aid Regulations.