LEE PUI MEI v. WAN CHI CHIU AND ANOTHER

HCPI-814/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 814 OF 1998

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J U D G M E N T

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1. On the 25th July 1996, Madam Lee Pui Mei, then a 68 year old lady, boarded a No. 101 CMB double-decker omnibus at a bus-stop known as Chi Kiang Street Playground (as shown in photograph No. 3 in the bundle Exhibit P1) on her way home from visiting her brother and his wife in Tokwawan.

2. She paid her fare into the machine or box at the front of this one-man operated bus. She thought she was entitled to the senior citizen's concessionary fare but the driver, the 1st Defendant in this action, pointed out that this did not apply either on this bus service or at this time of day. Accordingly she started to get the necessary coins to make up the difference. Whilst she was doing this the bus was already on the move. She was carrying a bag of dried vegetables, and such like, as well as her handbag but these were not heavy items.

3. She managed to move to the middle section of the bus and take hold of the vertical pole. There were seats further down in the other section of the bus but she was unable to take a seat whilst the bus was in motion. She decided to take a seat as soon as the bus had stopped moving so as to allow her to do this in safety. Before that was possible, the Defendant had braked sharply causing her to be thrown to the ground. As a result she sustained serious injuries, including fractures of her left hip and humerus. The accident happened at about 7:45 p.m. She was admitted to the Queen Elizabeth Hospital. We have no note of the time of that but we know she was seen by a Police Officer at about 9:40 p.m. This was within two hours of her admission. I have no doubt that she was in some pain, confused perhaps even shocked. Neither party has adduced any evidence about her condition from the hospital authorities.

4. Mr. Mumford on behalf of the Defendants has taken the Plaintiff to task on a number of points in her witness statement, prepared for the purposes of this action, when compared with the contents of her statement to the Police Officer (as it is described). I will return to the format of that document and what reliability should be placed on it later. In passing I should point out that the same Police Officer "took a statement" from the 1st Defendant at about 11:20 p.m. that same night. It would have been far better, and safer, if a different Police Officer had interviewed the bus driver and earlier. The same Police Officer drew the sketch plan at about 8:55 p.m. The sense of priorities leave something to be desired as far as this accident was concerned particularly since this was not a case of a collision between two vehicles.

5. In her police statement bearing her thumbprint, she could not write because of the damage to her arm, she is recorded as having said in answer to the question - "Why did you fall down?" - "As I am elderly, I could not hold tightly." In the witness statement, so-called, she says she did not say the reason she fell down was that she was elderly and could not get hold of the handrail. I cannot see the slightest significance in this difference. It is quite clear that she fell down because the force and suddenness of the braking caused her to lose her grip on the pole. The explanation for the form and the contents of the police statement comes from her granddaughter who was with her at the hospital and helping with the interview.

6. The second point taken relates to part of a recorded answer which reads - "Before the incident, the bus driver was not driving at a high speed. The bus was moving steadily." In her witness statement she denies saying this but says "The speed of the bus was very fast and I had to wait for it to stop before I could sit down." Speed is relative, as are impressions of speed. The point is that the speed of the bus was such as to prevent her from reaching a seat until it stopped. There is nothing in this point which has been taken by the Defendants. She may well in retrospect, have felt the bus was travelling fast.

7. Finally, in evidence she said when she was holding the vertical bar, she had her handbag under her left arm and the other bag on the floor so that she was using both hands to hold the bar. In the police statement, it is recorded that she was holding the vertical bar with her right hand and a carrier bag in her left hand. The purpose of questioning by Mr. Mumford on this was to suggest that the Plaintiff was changing her story to try and make it look as if she was holding on more securely. He indicated that this would go to credibility. In my view, it is an irrelevance. The issue is not whether she was holding with one or two hands - it is whether the Defendant was negligent in a lack of care towards his passengers and/or negligent in his driving. It is clear that the Plaintiff's grand-daughter Miss Wong Mei-ling was with her in the hospital when the interview with the Police Officer took place, and she was helping with the exchange of information. There may have been some misunderstanding; the grand-daughter was doing her best to convey her grandmother's replies and information to the Police Officer. The circumstances were far from ideal in which to obtain a reliable account. I doubt if the Plaintiff was really well enough to be interviewed; her severe fractures would have caused her pain, and she may have been sedated or given strong-painkillers. Some of the minor detail may have been confused. She could not have had a clear idea of the bus' speed or of what caused it to brake. But the fundamentals ring true; where she got on, payment of the fare, where and why she was holding on, what caused her to fall.

8. The driver's version of events comes in three forms. His evidence on oath, his written statements prepared for this action, and the statement recorded by the Police. His evidence was in fact a confirmation of the contents of the written statement. The story is significantly different from that contained in the police record.

9. He agrees that the Plaintiff boarded the bus at Chi Kiang Playground stop and alleges that after payment, she sat down on the seat near the driver on the left hand side of the bus facing inwards; thereafter she must have moved further into the bus perhaps for another seat and fell down when he had to brake for a vehicle which cut in front of him. All he saw was that she must have fallen near the exit door.

10. He says he stopped at the bus-stop after the one at which the Plaintiff boarded, a stop near San Lau Street/San Wai Street, where two passengers boarded.

11. All this is in direct conflict with the Plaintiff's version of events; she did not ever take a seat. She had no such opportunity. The bus did not stop at the next bus-stop. Of some importance is the absence from the Defendant's police statement of any reference to her having taken a seat or of his having stopped at the next bus-stop. I am bound to say even by this stage that I believed the Plaintiff and certainly disbelieved the Defendant. His explanation for the difference between the contents of his police statement and those of his witness statement over two years later, is certainly not credible as will be seen when I examine that shortly. The contents of the police record are consistent with the Plaintiff's version to a significant extent.

12. The most astonishing discrepancy in his versions is in respect of where and how the incident happened. In his evidence confirming the contents of his witness statement, he says he proceeded to the Ping Chi Street stop, shown on photographs 35 and 36 of Exhibit P2 and drew up there. Three passengers boarded there. The Plaintiff was still seated on the side seat. This bus-stop is situated in a lay-by or pull-in - three traffic lines continue outside this lay-by for vehicles proceeding towards H.K. Polytechnic. He said he checked his rear view mirror before pulling out into the first or inner lane, having also switched on the right hand (offside) indicator signal. He had positioned the bus wholly in the inner lane when a saloon car cut sharply in front of him and so closely that there was a gap of only one foot between the offside front of his bus and the nearside front of the motor-car. He had to brake heavily. The car drove on and he apparently was unable to note its registration number.

13. This is a detailed, not to say elaborate version of events. It bears no resemblance to the explanation recorded by the Police Officer. That was extremely limited. It was encapsulated in a statement to the effect that having reached a position near Ping Chi Street in the first or inner lane, a dark coloured saloon car, cut in front and caused him to brake. One telling question and answer also contradicted his current explanation that the Plaintiff had sat down on the side seat near the driver and must have moved from that position further into the bus:

Q. "Do you know why the elderly lady had not sat down yet?"

A. "I guess that she wanted to find a good seat ......"

14. The explanation from the Defendant to account for the significant differences between the contents of the police record and his evidence (and the contents of his witness statements) is as follows:

"The Police Officer put to me the Plaintiff's version. He said 'you had better follow this'. Whether the car cut in before or after the bus-stop does not matter. I agreed with what he wrote down. I accepted it even though I did not agree with it."

He also signed a sketch plan purporting to show the braking incident as having occurred before the Ping Chi Street bus-stop.

15. I do not consider the Defendant's explanation credible. I regret to have to say that he has not told the truth. The version he now puts forward is to hide the fact that he was negligent.

16. When this 68 year old lady boarded the bus carrying a bag and paying her fare in two stages, the bus proceeded without allowing her to get safely to a seat. I am satisfied she wanted to get to a seat. It was the sensible thing to do. The Defendant knew she was elderly and that it was important for her to be in a seat, not standing with a bag. That is why he conceived the story of her taking the side seat. It was negligent of him, putting her at risk, and neglecting his duty of care towards her, for him to drive on at that stage. An experienced bus driver knows that traffic conditions sometimes, perhaps often, cause a bus, and other vehicles, to brake sharply, even when they are travelling in compliance with the speed limit. Accordingly he must make sure that his passengers are not at risk, as far as he can. He should have ensured she had a seat. He did not do so in her case. His story of a stop at San Lau Street/San Wai Street was probably conceived to suggest that she was still seated at that stage or had an opportunity to change seats or remain seated; in other words a normal state of affairs without risk. In my view, he was negligent and liable for her fall whatever caused him to brake suddenly.

17. The reason for his braking was not however without blame on his part. I reject his belated story that it occurred after he emerged into traffic following a stop at the Ping Chi Street lay-by bus-stop. He did not stop there. The braking occurred, as he described in his interview record with the Police Officer, before he reached that stop. What caused him to brake? In my view, it was caused by one of a number of circumstances. He may have approached the stop at too fast a speed and found a slower moving car in front of him causing him to brake sharply. He may have thought that there were no passengers waiting there and decided to proceed, realising at a late stage that he did have to stop after all, and had to brake sharply. He may simply have been travelling too fast for an easy pull in - perhaps another bus had not cleared the lay-by. I am satisfied he had made up the story of stopping there and then emerging in order to cover his own negligence, in the driving of the bus, which caused the sharp braking.

18. He was negligent therefore in two respects. The Plaintiff is entitled to judgment for the full amount of her claim. There is no contributory negligence. Any suggestion that she did not hold on tightly enough is unrealistic in the circumstances.

19. I have some sympathy for the Defendant despite the fact that he has contrived a dishonest story to try and exculpate himself. He explained that although he would do his best to let any disabled passengers hold onto something before he drove off, he had not received any guidance from his superiors. He was not told to let such passengers get a seat before he drove off. He said it would be impossible for him to do this. His timetable was the inhibiting and governing factor. He was worried about warning from his supervisor if he exceeded the journey time. It was difficult for him to allow a passenger to reach a seat before he drove off. If he had to look after them (disabled or elderly passengers) he would be late for each journey.

20. His working day, six days a week, was from 11 a.m. or 12 noon until 1 a.m., with a meal/rest break for just over two hours - this is a working day of between 13 and 14 hours with the meal/rest break mentioned. Common sense and experience will indicate that that imposes great strains on a bus driver on the streets of Hong Kong.

21. He added that if he arrives back at the end of a tour ahead of schedule, he has an extra break and he agrees that it is in his interest to get back early. One can appreciate the incentive. On the other hand if he arrived back behind schedule, his superiors would not be happy.

22. If he is correct in what he says, there are a number of inevitable conclusions. The bus company is more concerned about its timetable than the care of its passengers. The elderly, the infirm and the disabled are expected to fend for themselves and they must include pregnant women and women with young children to carry or care for. They have to fend for themselves on a bus which is required to meet a timetable without regard to the safety of its passengers. The young, the athletic, those with "sea-legs" and the ability to adjust to sharp acceleration and deceleration are expected to look after themselves and be the criteria for the less endowed. Buses run on these principles would do well to carry a board which says "The elderly, the infirm or disabled, and pregnant women should not board these buses, or if they do, do so at their own risk." A significant section of the population of Hong Kong fall within this grouping and uses such public transport. Any bus company concerned would do well to understand that it has a duty of care towards such persons. Instructions to drivers, and timetables, and supervision need to be adjusted to take this into account. The fact that buses are now operated on a one-man basis does not relieve such companies of their obligations. It may make it more difficult than hitherto, when the bus-conductor had a clearly defined area of supervision and control and could guide the driver, but the duty remains undiluted.

23. Damages were agreed by the parties in the course of the trial. There will be judgment for the Plaintiff for $900,000 with costs to be taxed if not agreed such costs to include those occasioned by any application to the M.I.B. There will also be an order for Legal Aid Taxation.