CHOW SHU KI v. SHUM WAI MING AND ANOTHER

HCPI 1017/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1017 OF 2001

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J U D G M E N T

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1. Mr Chow Shu Ki was a passenger on a bus owned by the 2^nd defendant, KMB, and driven by the 1^st defendant Mr Shum.  When the bus was stationary at a bus stop, Mr Chow fell out of the middle door of the bus on to the ground.  He suffered a very severe head injury, which left him in a vegetative state and totally dependent on others.  Through his wife and next friend, he claims damages.  The trial was on liability only.

2. The accident happened on 14 December 2001, during the evening rush hour, at a little after 7 p.m.  The bus stop was at Greenfield Terrace on Princess Margaret Road in Kowloon.  The bus was a public double-decker bus, registered no. GM 6125, travelling on KMB’s cross-harbour route no. 103.

3. Mr Chow boarded the bus at Hong Chong Road outside the Hong Kong Polytechnic University, which was the first stop after the Cross-Harbour Tunnel, along with several other passengers, one of them a Mr Mui Chun Yu.  Mr Chow and Mr Mui got into an argument about queue-jumping.  After boarding, both stood in the area between the exit door and the staircase to the upper deck.  The bus proceeded to a stop at Wylie Road, and then to the stop at Greenfield Terrace, where, apparently, the argument broke out again.  There were some verbal altercations and physical contact between the two men, as passengers alighted through the exit doors, and then Mr Chow fell out of the exit door.  He was seen lying on the ground unconscious or partly conscious, with his feet towards the exit door of the bus.  He was taken to hospital, where he was found to have a skull fracture with acute subdural haematoma and diffuse cerebral injury.

The plaintiff’s case

4. The plaintiff’s case is founded on breach of KMB’s contractual duty to its passenger, negligence, breach of the common duty of care under the Occupiers’ Liability Ordinance, Cap.314, breach of statutory duty to take reasonable care for the safety of a passenger in or on or alighting from the bus, under the Public Bus Services Regulations, Cap.230, and breach of statutory duty not to allow passengers in excess of the authorised capacity on board the bus, contrary to the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap.374.

5. The particulars are the same under all the different heads.  However, what the pleaded case comes down to is quite simple.  In the first place it is that the bus was overcrowded, and this caused or contributed to Mr Chow’s being pushed off it by the alighting passengers.  In the second place, it is that the driver should have realised that there was an argument going on between Mr Chow and Mr Mui, and should not have opened the door.

6. There is also a lengthy set of voluntary particulars, added as late as 31 October 2005, a few weeks before the trial.  In the voluntary particulars, it is said that KMB should have provided various equipment, such as video monitors, automatic counters and extra personnel to prevent overcrowding, and exit turnstiles should have been in place to prevent passengers from falling off the bus.  It is said that proper instructions should have been given to the driver, and an audible warning system provided for him to operate, to warn of overcrowding.  Further it is said that more handrails, and in particular a vertical pole should have been installed at the exit.

The defendants’ case

7. The defendants deny that the bus was overcrowded or that the number of passengers exceeded the maximum capacity.  They further say that if it was overcrowded, this did not cause the accident.  They make averments as to the incident involving Mr Chow and Mr Mui and say that the accident was caused by them, and neither defendant had any control over it.  They also aver acceptance of risk and contributory negligence on the part of Mr Chow.  They deny that the bus was not fitted with adequate equipment and refer to the fact that other bus companies do not fit the equipment which the plaintiff says should be fitted.

Issues

8. The issues for decision may be expressed thus :

(1)	How did the accident happen?
(2)	Was the bus overcrowded?
(3)	If so, did the overcrowding cause or contribute to the accident?
(4)	If the alighting passengers caused Mr Chow to fall, were the defendants obliged to guard against that happening?
(5)	Did the bus driver appreciate that there was a disturbance going on?
(6)	If so, should he have kept the door closed?
(7)	Did his failure to keep the door closed cause or contribute to the accident?
(8)	Was the bus inadequately equipped? and
(9)	Did the lack of any equipment, which should have been fitted, cause or contribute to the accident?

The bus

9. It is convenient to describe the bus at this stage, and in particular the provisions made for the safety of passengers.  I have been provided with agreed plans and photographs.

10. The bus is a double-decker, with a single entrance door at the front near-side and a double exit door at the middle near-side.  There is a spiral staircase to the upper deck at the middle off-side of the bus with its bottom step opposite the rear door of the two exit doors.

11. The passenger steps from the ground on to a step inside the bus at the level of the bottom of the front door and then up on to the floor of the lower deck.  Immediately in front of him, on the off-side front of the bus, is the driver’s compartment and next to it the coin box and Octopus reader, by which the passenger may pay the fare.  Once that is done the passenger moves aft into the lower deck or by the staircase to the upper deck.  There is a yellow line on the floor just behind the driver’s position and the passengers are required to stand to the rear side of the line.

12. Both the entrance and exit doors are folding doors, controlled by the driver.  The front entrance, when the single door is open, is some 570 mm wide.  The double exit doors are 1160 mm wide overall, and they fold inwards, so that when the doors are open, the distance between them is about 960 mm.  Each door is fitted with a diagonal tubular handrail.  The exiting passengers step down two steps, and then to the ground.  In other words, they take three steps down from the deck to the ground.  They may hold the diagonal hand-rails on the doors as they do so.

13. The floor area inside of the exit door recess is about 1160 mm from front to rear, about 920 mm across between the edge of the deck and the staircase trunk and about 870 mm between the edge of the deck and the riser of the first step of the staircase to the upper deck.  There no hand-holds or hanging handles on the ceiling in this area, as there are in the front and rear compartments, but there are five vertical pole hand-holds between the floor or waist-height and the ceiling.  There is one on each side of the exit door recess, i.e. fore and aft of it, one on either side of the staircase entrance, and one at the forward end of the staircase trunk.  There is a horizontal pole at about waist height between the latter two vertical poles.

14. The bus is approved by the Transport Department to carry 136 passengers in all, 62 seated on the upper deck, 40 seated and 34 standing on the lower deck.  When the bus is full, the Public Bus Services Regulations require the driver or conductor to display a sign saying “Bus Full” in Chinese and English.  Such a sign, as well as an audible warning, is provided and is operated by the driver from his compartment.

15. The bus driver is the only crew.  It is up to him to decide if the bus is full or not, and if it is full, not to allow any more passengers to board.  The driver can see into the upper deck by means of a periscopic set of mirrors in front of him in his driving compartment.  He can see passengers alighting from the exit doors by means of the left side external driving mirror, mounted above the entrance door.  He can see into the lower deck by looking back from his open driving compartment, and by looking in the internal rear-view mirror mounted on the central windscreen pillar.  He can also look back through this mirror to a convex mirror mounted above and behind the exit door which allows him to see down into the door recess.

How did the accident happen?

16. Live evidence on this comes from one passenger, Mr So Kin Wing.  The bus driver, the 2^nd defendant Mr Shum, has also given evidence.  In addition there are statements given to the police by Mr Mui, under caution, and by two other passengers, Ms Tam Wai Ling and Ms Ng Ka Bo.  The defendants have given hearsay notices in respect of these persons, and the plaintiff has not; but the plaintiff relies on their evidence anyway.  They are hearsay and admissible subject to the criteria, set out in the Evidence Ordinance, as to the weight to be given to them.

17. There is also a finding by H.H. Judge Yung, in employee’s compensation proceedings in the District Court, for Mr Chow was travelling in the course of his employment, that the accident was caused by the crowded condition of the bus and the current of alighting passengers.  Mr Chan SC, for the plaintiff, argues that I should take this into consideration.  No doubt technically I can do so, but I am not bound by the judge’s findings, and it is for a judge of fact to decide the facts on the evidence before him.  In any event, in those proceedings the issue was whether the accident arose out of and in the course of employment.  How the accident happened was secondary.

18. Mr So Kin Wing’s evidence was that when he was getting on the bus at Hong Chong road, two groups of people tried to get on at the front door.  Mr Mui, in one group, told the other group to queue up and stop pushing in.  Mr Chow, in the other group, said that he was just queuing.  In the queue, they argued more.  On the bus, there was bodily impact between them, but Mr So did not see who bumped whom.  Later, when the bus was moving and Mr So was standing near the bottom of the staircase, he saw Mr Chow facing the staircase with the middle bus door behind him, and Mr Mui facing him.  Mr Mui said “Inhuman” and Mr Chow replied “Yes, inhuman speech”.  Mr So went past them and stood on the third stair.

19. When the bus stopped at the Greenfield Terrace stop, Mr So heard someone say “I have put up with you for a long time”.  He leaned down from where he stood inside the staircase, and saw Mr Chow grasping Mr Mui’s tie.  At this time the bus door was open and seven or eight passengers were getting off.  Someone came down past Mr So and blocked his vision.  When he looked again he saw Mr Chow lying on the ground outside the bus, with his face upwards and his feet pointing towards the bus.

20. What Mr So said in his police statement was to the same effect.  In oral evidence he said that the bus was crowded, so that people stood 3 to 5 inches apart, and the bottom deck was crowded all the way along.  Under cross-examination he demonstrated how Mr Chow had pulled Mr Mui’s tie.  At this point, he said, they were both standing in the middle part of the bus, between the stairs and the door, where he had earlier seen them, and demonstrated their positions by marking a photograph.  Mr Mui had been standing with the stair behind and on his left.  He could see Mr Chow grabbing the tie with his right hand, but he could not see Mr Chow’s left hand.  He did not see any fight.  He said that the 7 to 8 passengers got off in the normal manner of Hong Kong people getting off a bus, i.e. fast; and that from hearing the voice until he saw Mr Chow lying on the ground, the time was very short; perhaps five or ten seconds.

21. In his cautioned statement, Mr Mui said that he and Mr Chow had quarrelled on the bus and Mr Chow had knocked Mr Mui’s head with his own head.  When the bus came to the Greenfield Terrace stop, Mr Chow used his back to bump into Mr Mui’s chest.  Mr Mui pushed him off.  Then Mr Chow approached him fiercely, and Mr Mui pushed him off again.  As there were many people getting down, it caused him to lose balance and fall to the ground.

22. Mr Mui was later asked questions under caution.  In answer he said much the same; that Mr Chow had grabbed his tie and that he had retreated backwards along the staircase going up and down the upper deck.  Mr Chow was forced to release his hand.  There were many passengers getting off through the exit door.  As Mr Chow was standing at the exit door, he was pushed and shoved by the alighting passengers causing him to lose balance and falling down to the ground through the exit door of the bus.

23. Ms Ng told the police about the quarrel at the bus stop, and then that, when the two men had argued on the bus, she had remonstrated with them, so that they became silent.  Then at the Greenfield Terrace stop, she had seen Mr Chow, pretending to be pushed by the crowd, step back and bump against Mr Mui with his back.  He did it twice.  Mr Mui pushed him off and said that he had put up with him for a long time already.  Mr Chow turned to face Mr Mui, who grabbed his neck with his right hand to stop him from getting near, and Mr Chow grabbed Mr Mui’s tie with his right hand.  All this took seven or eight seconds.  They were in the middle of the bus, causing obstruction to those who wanted to get off.  Meanwhile the people who got on the bus flew in.  Mr Chow seemed to lose his balance, and fell backwards to the ground outside the bus.

24. Ms Tam was a colleague of Mr Mui, and had met him at the bus stop, waiting for the bus.  They got on together.  She gave much the same evidence as the others about the queue-jumping incident and what followed.  As to what led to the fall, she also said that Mr Chow bumped Mr Mui with his back, but then there was an exchange of foul language and both of them hit each other.  She was standing on the lower deck at the bottom of the stair, with the exit door behind her; she heard a silence behind her and turned to see Mr Chow lying on the ground.  She did not know how he came to fall.

25. Mr Shum was the driver.  He had about 31 years’ experience as a bus driver.  He had been driving the same route since 1973, and had driven the same model of bus for three years.  He had various awards from KMB for his driving.

26. His evidence is that when the bus came to the Hong Chong Road stop, he opened the middle door to let the passengers out, and about 20 or 30 persons alighted.  He had had his “Bus Full” sign displayed, but he took it down and opened the front door to let the passengers get on.  He heard someone talking about jumping the queue but did not see who it was.  About 20 persons got on.  He asked those standing near the exit door to move in, which they did, and everyone waiting was able to get on.

27. After the bus moved off, Mr Shum says that he heard persons quarrelling in the lower deck, intermittently, and not too heatedly, and they stopped before he got to Wylie Road.  He had had instructions that if there was fighting on the bus, he had to stop and call the police and his company, but since they were only quarrelling and not fighting, it was soon over, and no one else complained, he did not stop the bus.

28. At the Greenfield Terrace stop he saw only 6-7 passengers waiting so he opened both doors at once.  There were many passengers to alight, because it was time for people to go home.  He did not hear anyone quarrelling.  As the passengers were alighting, he heard someone say “I have been tolerant to you for a long time”, and then someone told him that a passenger had fallen on the road; so he got out and went to investigate, and found Mr Chow lying on the pavement with his feet towards the bus.

29. Under cross-examination, Mr Shum said that when he heard the words, the door was already open and several passengers had already got out.  He agreed that if he had been provided with some kind of closed circuit video camera and screen, and had seen people in physical contact in the bus, he would have pulled over, stopped and called the police.  However, asked what he would have done if he had seen one man grabbing another’s tie, his answer was that everything had happened in a short time, and even if he had got out of his seat, things would already have happened.

Finding of fact

30. All the evidence is pretty much consistent and shows that there was some kind of incident involving Mr Mui and Mr Chow when the passengers were alighting.  Mr Chow was standing facing Mr Mui with his back to the door.  At this point, many passengers got off.  No one saw exactly what happened.  But the consensus is that the exiting passengers must have pushed or jostled Mr Chow so that he fell out.

31. On Mr So’s evidence, Mr Chow had hold of Mr Mui’s tie, and he could not see where Mr Chow’s other hand was.  Mr Mui also, according to his statement, put his hand on Mr Chow’s neck, but there is no evidence that he pushed Mr Mui.

32. It seems to me more probable than not, and I am satisfied that the immediate cause of the accident was that the alighting passengers jostled Mr Chow, as he stood at the edge of the steps to the door, in confrontation with Mr Mui, so that he fell backwards out of the bus.  Mr Chow was not holding on to any hand-hold at the time.  Whether he was pulling Mr Mui’s tie in aggression, or in order to save himself from falling is not clear.

Was the bus overcrowded?

33. It is argued for the plaintiff that the duty of a public transport operator is to provide reasonable accommodation for the passengers, and it is a breach of that duty to allow a carriage to be overcrowded.  See Metropolitan Railway Co. v. Jackson (1877) 3 App.Cas.193; Murgatroyd v. Blackburn Tramways (1877) 3 TLR 45.

34. Most of the cases on accidents caused by overcrowding date from Victorian times, when means of public transport such as trains and trams proliferated in the United Kingdom.  Counsel also relies on a Hong Kong case, Lai Hing Wan v. Kowloon Canton Railway Corporation, HCA 4338 of 1984.  These cases are valuable where they deal with principle, but each case has to be taken on its own facts.

35. Accommodation on buses in Hong Kong is governed by the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap.374, sub. leg. Regulation 74, which requires the Commissioner, on the registration of a bus, to calculate the number of standing passengers that may be carried.  Any person who uses or causes or permits to be used on any road any vehicle which does not comply in all respects with that regulation commits an offence under Regulation 121.

36. Obviously, for the defendants to be held liable for breach of statutory duty under Regulations 74 and 121 as pleaded, it would be necessary to prove that there were more than 34 standing passengers on the lower deck.

37. I do not know whether the Metropolitan Railway Company or the Blackburn Tramways were subject to similar requirements by the local or central government authorities of their day; the cases do not show that; but the KMB is.  For the purposes of negligence, granted that the common law principle is that “reasonable accommodation” must be provided, I think that has to be viewed in the light of the statutory requirements.  Obviously, if more than 34 passengers are allowed to stand, there is a failure to provide reasonable accommodation for them.  But once the statutory limit is established it is impossible to say that anything less is unreasonable.  No one would not where to draw the line; should it be 33 passengers, or 32, or how many?

38. It was also argued that irrespective of this limit, there should not be overcrowding in any particular part of the bus such as the area just inside the door.  In Lai Hing Wan, the railway company was found liable, inter alia, for not taking reasonable measures to move passengers from the front end of the train where they were overcrowded to the rear end where there was accommodation available.  Also reference is made to the fact that, for purposes of the calculation of the number of standing passengers, the Commissioner must, under Regulation 74, disregard certain areas, in particular the spaces within 230 cm of the riser of the bottom step of the staircase and 230 cm of the door.  It is said that these areas are not for passengers.

39. I do not see that there is any particular duty on the KMB or its driver to make standing passengers move from one part of the bus to the other.  In the first place, this would be practically impossible for a driver who is the only crew.  In the second, the bus is so arranged that the passengers are expected to come in at the front and pay there, and move inside.  Natural pressure of those behind will push those in front further in.  If anyone wants to stand near the exit door, with a view perhaps to getting off at the next stop, he can do so and there should be no problem given that the area near the door is well served with hand-holds.  There should be no difficulty in others pushing past persons standing there, in order to move into the rear of the downstairs cabin or up to the upper deck.  As will be seen below, a bus operator can expect passengers to act reasonably.

40. Nor do I see that there is anything in the suggestion that areas left out of the reckoning for calculation are not for passengers.  No doubt the calculation is done with a view that none of the standing passengers should be forced to stand immediately next to the stairs or the exit or in other spaces left out of the calculation.  But there is no way to stop them from standing where they will, except immediately in front, beside the driver (there is a yellow line to show the limit there) and anyone who has travelled on public transport in Hong Kong will know that immediately before the bus, train, ferry or whatever stops, passengers will crowd to the exit door so as to be able to alight as soon as the door opens.  As Mr So said, they normally alight quickly.  They will also crush and jostle one another in the process of alighting.

41. In order to prove overcrowding for negligence or breach of the Regulations, therefore, a plaintiff must, in my view, show that the number of standing passengers exceeded the statutory limit.  The same would apply for breach of the Occupiers Liability Ordinance or the Public Bus Services Regulations.  This is obviously difficult, as there is no automatic counting system, and a passenger will not usually be able to count how many others are standing, if the bus is full or nearly so.  It may, however, be possible to infer, in a case of severe overcrowding, that the limit must have been exceeded.

42. In the instant case we have the evidence of Mr So, who says that “in his judgment” the bus was overcrowded.  The lower deck was filled with sitting and standing passengers.  It was very crowded.  The space between persons about 3 to 5 inches, maybe less than that.  There was no empty space where passengers could have stood.  He tried to go upstairs but could only get as far as the third step because of the overcrowding.  He could see that the area near the top of the stairs was full of people.  That was when he got on the bus.  The crowding reduced somewhat at Wylie Road, when he was able to go and stand in the staircase, because people came down from the upper deck.  But according to him, the crowding in the lower deck was much the same.  However, he cannot say what number of persons was on the bus by the time it arrived at Greenfield Terrace.

43. The absent witnesses who gave statements to the police about the pushing incident did not particularly mention overcrowding, as I suppose they would not, given that the police were not investigating that.

44. The driver, Mr Shum, said that there were about 120 persons on the bus when he came through the Cross-Harbour Tunnel.  At this time he had put up the “Bus Full” sign.  He estimated 20 or 25 standing downstairs.  Between Wylie Road and Greenfield Terrace, there were about 110 persons on board.  The bus was no more crowded than usual at rush hour.  Mr Shum’s estimates were, it seems, based partly on counting the passengers on and off and partly on his long experience of many years on the same route.

45. I found Mr So a credible witness, but Mr Shum was no less credible.  Neither was in a position to say exactly how many persons were standing on the lower deck at the time of the accident.  Mr Shum has many years’ experience, driving on the same route since 1973, and one might expect his estimate to be more or less accurate.  It is not suggested that the bus was so crowded that there must have been more than 34 standing.  If, as Mr So says, they could stand 3-5 inches apart, it seems that the bus was not so desperately crowded that one might infer that there were more than 34 of them standing.

46. I am not, therefore, satisfied that the bus was overcrowded, or that the defendants were negligent or in breach of statutory duty in allowing overcrowding.

If there was overcrowding, did the overcrowding cause or contribute to the accident?

47. The question may be put another way.  I am satisfied that Mr Chow was jostled by the exiting passengers so that he fell backwards out of the bus.  Did overcrowding contribute to the jostling?

48. I am not satisfied that there was overcrowding but it is as well to consider this issue.  Contribution comes in because the plaintiff would not have to prove that overcrowding was the sole cause, so long as it was a material cause.  See McGhee v. National Coal Board [1972] 3 All ER 108.

49. There would obviously have been an element of crowding at the door, before and at the time when it was opened to let the passengers alight.  As I have said, that always happens on public transport.  It is to be expected.  I do not think that, if the bus had been overcrowded in the sense of having more than 34 people standing on the lower deck, it would have made any difference.  There would have inevitably been such a throng of people at the door at the time of alighting, no matter how many there were elsewhere in the cabin.  I have already dealt with the question of whether the defendants were obliged to guard against crowding near the door.

50. The situation was not unlike that in Machen v. Lancashire and Yorkshire Railway (1919) LKKB 371, where a boy was pushed out of the crowded guard’s van of a train by a number of exiting passengers, and so injured.  At page 373 Swinfen Eady MR said:

“There was therefore no evidence of any breach of duty on the part of the defendants but even if there was, the second question would then arise whether there was any causal connection between the breach of duty and the accident.  The accident was due to the rush of the colliers to leave the train, and the same accident might have happened in a rush from an ordinary third class carriage, whether it was overcrowded or not.”

51. In my view, therefore, even if there had been overcrowding, it would not have contributed to the accident.

If the alighting passengers caused Mr Chow to fall, were the defendants obliged to guard against that happening?

52. The duty is to use reasonable care and skill for the safety of passengers during their carriage.  The carrier is not an insurer of the safety of the passenger.  SeeCharlesworth & Percy on Negligence, 10^th Edition, paragraph 9-84.

53. A bus operator is also entitled to assume normal behaviour on the part of passengers.  Per Lord Atchison inDegan v. Dundee Corporation (1940) SC 457 :

“People who run omnibus services… are entitled to assume that passengers will act like normal human beings, and that crushing and jostling will not be carried to the extent of causing injury… something must be left to the reasonable discretion of the common sense of people who travel…”

As I have said, crushing and jostling in the process of alighting is to be expected.  I do not see that there is any way that a bus operator can stop it.  Nor do I see that it should be obliged to, so long as it takes reasonable steps to make the exit reasonably safe for people to get out, knowing that they will crush and jostle as they do so.  Excessive crushing and jostling so as to cause injury is not something that the bus operator must guard against.

Did the bus driver appreciate that there was some kind of fight going on?

54. It is not in dispute that if a fight breaks out on a bus, the driver is required by the KMB to stop the bus, keep the doors shut and call the police and the company.

55. In the first place, it does not appear that there was really a fight.  What happened was some deliberate jostling or pushing by Mr Chow.  One of the absent witnesses told the police that they hit each other but the others do not go so far.  It seems that a fight was about to break out but it had probably not yet escalated to that level.

56. Mr So says that he heard the words “I have put up with you for long enough”.  At this point, the door was already open.  The whole incident, between this point and when he saw Mr Chow lying on the ground, took 5-10 seconds.  Mr Shum also says that he heard that when the passengers were getting off.

57. If there was a fight, and I do not think that it had gone that far, I do not see that Mr Shum had time to appreciate it, or do anything about it.  The door was already open, and I do not see that he could or should have tried to close it; or that any failure on his part to do so caused or contributed to the accident.  It all happened too quickly.

Was the bus inadequately equipped and did the lack of any equipment, which should have been fitted, cause or contribute to the accident?

58. Evidence on the equipment comes from the KMB engineer, Mr So Hing Shun.  The evidence in his witness statement is mainly about safety equipment on the bus, and it is to the effect that the equipment is fitted in compliance with the Regulations and the Transport Department requirements.

59. He also says that there are no requirements in force in Hong Kong for bus operators to install any closed circuit video surveillance system or other visual monitoring systems and equipment, passenger flow control system or calculation device such as turnstiles at the bus entrance and exit, whether with counters or otherwise.

60. After the plaintiff filed his Voluntary Particulars, and certain communications passed between the parties about equipment fitted to other buses, in particular a cross-border bus and some of the Hong Kong trams, Mr So investigated these matters.  There is nothing in them.  One cross-border bus has a video link, but it is there for the passengers to be able to watch their luggage.  Some trams have a video link, to let the driver observe the passengers who board at the rear of the tram.

61. The voluntary particulars say, in effect that KMB should have rebuilt its bus.  It should have had a video system for the driver to monitor the passengers and see if there was crowding overall and in different parts of the bus.  It should have had turnstiles for entrance and exit with counters.  It should have had conductors or inspectors, on the bus or at the stops to prevent overcrowding.  It should have given proper instructions to the driver about overcrowding and an audible warning device.  (In fact such instructions were given, and such a device was provided.)  It should have put in place proper passenger flow control, including turnstiles, to stop the passengers falling out.  Finally it should have installed handrails or vertical poles, in particular in the middle of the exit.

62. Where there is evidence that for a significant period of time a practice has been followed without untoward result, it will be regarded as a strong indication that to follow that practice is consistent with the exercise of reasonable care.  This is not conclusive but generally “a defendant charged with negligence can clear himself if he shows that he has acted in accord with general and approved practice.”  See Charlesworth & Percy on Negligence, 10^th Edition, paragraph 6-32.

63. This is particularly so, in my view, where there is a statutory authority overseeing the practice, as here where the Transport Department approves the equipment of buses.  If the bus conforms to the Commissioner’s requirements as to equipment and operation then the operator should be taken as having exercised reasonable care for the safety of the passengers in those respects.

64. It seems to me that the KMB, in providing what it does provide, is doing no less than other bus companies.  It is acting in accordance with general and approved practice and in addition it has the Commissioner’s approval.

65. In any event, even if the KMB had made the provisions which, according to the plaintiff’s Voluntary Particulars, it should have made, it seems to me that none of them would have made any difference to this case.

66. There was no overcrowding, in the sense of exceeding the approved limit, or no proof of it, so a video system would have made no difference to that.  If a video had allowed the driver to see the passengers crowded in one particular area, he could have done nothing about that and nor did he need to.  Similarly the provision of turnstiles with counters, or conductors or inspectors, would have made no difference.  As to exit turnstiles, I cannot see that these are necessary.  The exit system is safe enough as it is, if the passengers are using it normally.

67. The one point in the voluntary particulars which did give me some cause for concern was the averment that there should have been some hand-hold, such as a vertical pole or central pillar, in the middle of the exit, probably at the top of the two steps leading down to the exit.

68. Some parallels were drawn with the case of Wyngrove’s Executrix v. Scottish Omnibuses [1966] SC (HL) 47.  In that case the accident happened when a passenger went to the platform as the bus was approaching his stop, and fell off the moving bus, sustaining fatal injuries.  The platform had a folding door, which was operated by a conductor, and in accordance with regular practice it had been left open.  There were nine hand-holds on the platform but no central pillar in the doorway.  The Lord Ordinary held that there should have been such a central pillar, but the Inner House held that in view of the accident-free record of the type of bus, a reasonable person would not have considered the central pillar a necessity.

69. It was suggested that there should have been a central pillar in this case.  There is no particular evidence here of an accident-free record.  It was for the KMB to bring statistics, but it had not.

70. I do not think statistics are necessary or that it would be incumbent on the KMB to produce them in any event.  It does not have to disprove liability.  In any event there is evidence of no known accident from the very experienced bus driver.

71. However, it may be, in this case, that if a central pillar had been fitted, Mr Chow would not have fallen.  Should the KMB have fitted one?

72. I have noted that the passenger flow is such that the passengers get on at the front and off at the central door.  The doors are opened when the bus stops.  The buses do not — and this is observable on the streets — move with their doors open.  So there is no need for a central pillar for passengers to hold, while standing near the open door of a moving bus.

73. What the KMB and its drivers expect is that when the bus stops and the door is opened, all the alighting passengers will face the door and step down the steps and off the bus.  If they need to, they can hold the diagonal hand-holds on the open doors.

74. What the KMB and the drivers do not expect is that anyone will be facing into the bus, against the flow of passengers getting off, because the passengers board at the front door.  If passengers boarded and alighted by the central door, a pillar might be necessary for their safety; but they do not.  So for normal purposes, the system seems safe enough and I cannot see that a central pillar is necessary.

75. On general principles the KMB can expect passengers to act like normal human beings.  People do not normally get into physical confrontations in the doorways of buses, as happened here.  It is not reasonably foreseeable and not something which needs to be guarded against by the provision of an extra central pillar.  I consider therefore that there was no duty on the defendants to fit a central pillar.

Result

76. This is an unfortunate accident which has resulted in catastrophic injuries to the plaintiff.  Unfortunately, however, I do not see any way that the defendants can be held liable for it.

77. The plaintiff’s claim is therefore dismissed with costs to the defendants (nisi) to be taxed if not agreed.  The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.