Ale Thak Prasad v. Tsang Chin Keung and Another

HCPI 579/2012

[2021] HKCFI 1006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 579 OF 2012

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Before: Deputy High Court Judge Winnie Tsui in Court

Dates of Hearing: 16 and 17 March 2021

Date of Judgment: 30 April 2021

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JUDGMENT

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Introduction

1.This trial arises out of a traffic accident which took place at about 6:10pm on Thursday, 20 August 2009 at a bus stop on Kwun Tong Road outside Kai Yip Estate.

2.The plaintiff had finished work for the day at a construction site not too far away.  He went to the bus stop to take bus no 89.  When he was at the bus stop, he got hit by a double decker Kowloon Motor Bus driven by the 1^st defendant.  The bus was on route no 89, travelling in the westbound direction for Mongkok.

3.The plaintiff suffered injuries as a result.  He now claims against the 1^st defendant for negligence and breach of statutory duty and the 2^nd defendant, the bus company, for vicarious liability.

4.As directed by Bharwaney J on 16 January 2020, the issue of liability should be tried first.

5.The plaintiff testified at the trial and called no other witness.  The 1^st defendant gave evidence.  The defendants also called Mr Tse Chi Wing Eric and Mr Mak Chun Wai as witnesses.  Tse and Mak worked on the same construction site as the plaintiff.  They claimed that they were waiting for buses at the bus stop when the accident happened and they saw how it happened.

6.The plaintiff was previously legally aided in these proceedings.  The legal aid certificate was discharged in November 2018.  The plaintiff has acted in person since then, including at the trial.  The defendants were represented by counsel Mr Patrick D Lim.

Geographical layout

7.It is necessary to describe the layout of the scene in some detail.  It would be convenient to do so from the viewpoint of the plaintiff as he was approaching the bus stop shortly before the accident.

8.According to the plaintiff’s case, a company bus took him and other workers from the construction site to Kwun Tong Road.  The company bus stopped on the other side of the road.  In order to get to the bus stop, the plaintiff had to cross Kwun Tong Road by a footbridge.

9.After descending from the footbridge, one would be going west for the bus stop, ie in the same direction as the westbound bus no 89.  There was railing by the side of the pavement.  After the end of the railing and a few steps up the road, there was a blue lamp post.  If one walked on a very short distance, one arrived at the first of a number of bus shelters located along Kwun Tong Road.  We are only concerned with the first of these bus shelters which one saw after descending from the footbridge.  The railing, the blue lamp post and the bus shelter were all aligned in a straight line along that straight stretch of Kwun Tong Road which is just outside Kai Yip Estate.

10.The bus shelter had a canopy.  At the time of the accident, the bus shelter served four routes, one of which was no 89. There were signs indicating the stopping positions for the four bus routes. 

11.The plaintiff is not very precise about which bus would stop at which part of the bus shelter.  But, materially, in his witness statement, the plaintiff said that bus no 89 would “stop at the 2^nd part of the bus stop”.  He also made reference to “the 1^st part of the bus stop”.  It is reasonably clear from his witness statement that in his own description, “the 1^st part” indicates the part of the bus shelter closer to the footbridge whereas “the 2^nd part” the farther part.

12.The defendants’ case is more precise and specific about the stopping position designated for bus no 89.  They say that bus no 89 would stop between the fifth and sixth poles of the bus shelter (counting from the position of the footbridge).  According to the photographs disclosed in these proceedings, that would be roughly where the Chinese words “巴士站” were painted in white large characters on the road.  In this judgment, I shall refer to this stopping position identified by the defendants as “the bus stop for no 89”.

13.The geographical layout of the scene is relevant to the main disputes in the trial.  The parties disagree on, first, the exact spot on Kwun Tong Road where the plaintiff was hit by the bus driven by the 1^st defendant and, second, whether the plaintiff was on the pavement or on the road when hit.  The plaintiff’s case is that he was knocked down when he was on the pavement and at a spot between the blue lamp post and the bus shelter.  The defendants’ case is that the plaintiff was on the first lane of the road when he was hit and the impact took place at or about the bus stop for no 89.

The plaintiff’s case

14.As revealed by his pleading, witness statement and oral evidence, the plaintiff’s case is as follows.

15.On the day of the accident, he finished work at the construction site. He took the company bus to Kwun Tong Road.  He was with three co-workers.  He was going to take bus no 89 to go to Diamond Hill.

16.In order to get to the bus stop, the plaintiff crossed Kwun Tong Road by taking the footbridge.

17.At that time, the weather was fine, the road was dry and visibility was clear.

18.In his witness statement, the plaintiff described how the accident happened.

“55. The no 89 bus would stop at the 2^nd part of the bus stop.

…

58. My accident occurred before I got to the bus queue – and prior to the 1^st part of the bus stop.

59. I recall that there were already some people that seemed to be waiting for the no 89 bus – I believe that there were 6 to 7 people.

60. As I walked to the queue, I was hit form the back.

61. At the time of the accident:

(1) I was walking – I was not running

(2) I was walking on the pavement – near the road

…

62. In the accident:

(1) I was hit by a bus

(2) I did not see the bus before it hit me

(3) I did not hear the bus coming

…

65. I was knocked to the ground, and fell onto the 1^st lane of the road with my head near the curb with the pavement

66. I was then hit a second time on my right leg – by the same bus” (emphasis added)

19.In cross-examination, it was put to him that other people waiting in the bus queue on the pavement did not get hit by the bus and he was the only one that was knocked down.  The plaintiff supplemented that he was not close to the people queuing up there and the distance between him and the person closest to him was about 4½ feet.  He also clarified that when he was hit, only the front part of the bus went over the pavement and hit him on his right back.  The wheel of the bus did not go over the pavement.

20.In summary, it is the plaintiff’s case that he was hit when he was between the blue lamp post and the bus shelter and he was then on the pavement, not on the road.

21.The plaintiff suggests that as the 1^st defendant approached the bus stop, he drove the bus from the second lane to the first lane and in doing so, he caused the front of the bus to mount or go over the pavement.  He drove in a negligent manner in that he failed to keep a proper lookout of the road, failed to sound the horn to give warning to the plaintiff and the other people waiting at the bus stop, and that he drove at an excessive speed and permitted the bus to collide with the plaintiff.  The 2^nd defendant is vicariously liable for the accident.

The defendants’ case

22.The defendants say that on the day, the 1^st defendant was driving bus no 89 from Kwun Tong to Shatin.  Just before the accident occurred, he was pulling up at the bus stop for no 89 at a speed of about 10 kph getting ready to stop.  The bus was on the first lane of the road.  His attention was on the road ahead.  He saw many people on the pavement waiting for the bus.  No one took any action or give any indication that they would get onto the road. The 1^st defendant continued to slow down to about 5 kph getting ready to stop at the bus stop for no 89.  Suddenly he saw a man (the plaintiff) coming out to the first lane of the road from the pavement.  At that instant, the left front of the bus was only about two or three feet from the man, with his back facing the bus.  The 1^st defendant immediately steered the bus to the right and applied the brake.  However, the left front corner of the bus still hit the right side of the man.

23.The 1^st defendant stopped the bus, got off and checked on the man.

24.In support of their case, the defendants rely on the police photographs taken at the scene.  They show the position in which the bus was stopped immediately after the accident.  The nearside front wheel of the bus was on the Chinese character “巴” marking on the road.  It will be recalled that that was the position which was assigned for bus no 89 at that bus shelter.  The photographs also show that the bus was aligned with the first lane of the road and stood parallel to the bus shelter with some distance from the kerb.  Mr Lim submitted that the post-accident position of the bus supports the defendants’ case that the bus had not mounted the pavement.

25.Tse and Mak claimed to be eye witnesses of the accident.  They were waiting for buses together at the time the accident happened.

26.Tse was a surveyor by profession.  Mak was a leveller.  Although both worked at the same construction site as the plaintiff, neither of them knew him.  Tse said in cross-examination that there were a few hundred workers on that site.

27.According to Tse, just before the accident happened, he was standing somewhere between the blue lamp post and the bus shelter, waiting for bus no 40.  He was facing the road while waiting.  Suddenly he saw a man (the plaintiff) with a backpack dashing out very fast from the crowd from his right hand side and onto the first lane of the road.  At that time a bus was travelling very slowly on that lane about to pull up at the bus stop.  After the man dashed onto the road, the right side of his body collided with the left side of the bus.  After the collision, the man fell and sat on the ground.

28.Mak gave a similar account that while he was waiting for his bus, he saw a man (the plaintiff) dashing out onto the road while a bus was travelling slowly on the first lane all along.  After the man dashed out, his right body collided with the left side of the bus.

29.In cross-examination, both Tse and Mak were invited to mark on a photograph the exact spot where the plaintiff was hit by the bus.  Tse made the marking at the bus stop for no 89.  That corroborates the 1^st defendant’s evidence.  Mak marked the spot at a point between the blue lamp post and the bus shelter.  That does not support the defendants’ case.  In re-examination, Mak said that the accident took place a long time ago and he could not recall the exact location where the impact took place.

30.In summary, the accident took place when the 1^st defendant was driving the bus slowly and pulling up at the bus stop for no 89.  At that instant, the plaintiff dashed out onto the first lane of the road and got hit there.

The plaintiff’s criticism of Tse and Mak’s evidence

31.At the trial, the plaintiff repeatedly emphasised that Tse and Mak are not independent witnesses.  He recounted a dispute he had with them at the construction site.  He knew that Tse was a surveyor and Mak a carpenter.  The plaintiff said that the two of them used his power cables and later refused to return them to his workers.  And the plaintiff had a verbal dispute with them.

32.Tse and Mak denied knowing the plaintiff at all.  In their jobs, they had no need for electrical cables.  They denied having any dispute with the plaintiff over electrical cables or at all.

The evidence

33.The parties are putting forward conflicting factual accounts of the accident.  One must bear in mind that the accident took place in 2009, that is almost 12 years ago.  One will inevitably have to accept that memory of the witnesses will fade to some extent over the long lapse of time. 

34.The resolution of the factual disputes will ultimately turn on the court’s assessment of the reliability and credibility of the witnesses.  The material factual question is whether the plaintiff was on the pavement or had dashed out to the first lane of the road when he got hit by the bus. 

35.When evaluating the evidence, my task is to assess the evidence against the backdrop of undisputed and indisputable facts.  I am to weigh the inherent probabilities of the parties’ cases.  The internal consistency (or inconsistency) of the parties’ evidence should be scrutinised with care.  The court would also be guided by its overall impressions of the characters and motivations of the witnesses.  In this case, given the long gap of time between the accident and the trial, I would consider that the written accounts of the accident made closer to the time is likely to be a more reliable guide than accounts made later (or much later).

36.On the whole, I find that the evidence of the defendants’ witnesses to be more reliable and credible than the plaintiff’s and that the defendants’ factual account more likely to be true.  I have taken into account the following matters which I consider to be material.

37.First, I would give significant weight to the evidence of Tse and Mak. Both witnesses gave a clear account in a straightforward manner of how the plaintiff dashed out onto the first lane of the road and then got knocked down by the bus.  I am satisfied that they are not interested in the outcome of this action.  They were mere bystanders at the scene who happened to witness how the accident unfolded.  As such, their evidence carries weight.

38.The plaintiff repeatedly emphasised that Tse and Mak are not independent witnesses.  In effect, the plaintiff is saying that they have held a personal grudge against him over the cables incident.  It is an allegation that Tse and Mak denied.  It is therefore the plaintiff’s words against theirs.  I would therefore test the inherent plausibility of the plaintiff’s case in this respect.

39.The alleged dispute was over Tse and Mak’s refusal to return some electrical cables.  Even on the plaintiff’s case, this appears to be a minor and one-off incident, with no or no serious consequence flowing from it.  If what the plaintiff said is true, that would mean that Tse and Mak were telling a lie that he dashed out from the pavement onto the road when the accident happened.  And they were fabricating this lie out of revenge because of the prior dispute over the electrical cables.  Not only did they make the false statement to the police back in August and September 2009 (ie shortly after the accident), but also they repeated the same false statement when they signed the witness statements for this action five years later in February 2014.  They further stood by this false position when they testified at the trial 12 years after the accident.

40.Implicit in the plaintiff’s case is that Tse and Mak did all these just because they have held a personal grudge against him over a minor incident which took place 12 years ago.  While I would not dismiss the plaintiff’s allegation as completely impossible, I find it to be inherently implausible and therefore unlikely to be true.

41.On the other hand, I consider it to be far more likely that Tse and Mak truthfully recounted what they saw at the scene and testified accordingly.  They were not motivated by any personal spite in doing so.  As such, they have no interest in the outcome of the case.  Their evidence should be accorded due weight.

42.Secondly, there is internal inconsistency within the plaintiff’s own evidence which is not quite explicable.  This casts doubt on the overall credibility of his evidence.

43.The main inconsistency is to be found in the statement he gave to the police in September 2009, that is within only one month of the accident.

44.Initially, he told the police:

“I was standing there in a queue waiting for the bus for a while. When I was standing (there), I suddenly felt that the right side of my waist was hit once. I immediately lost my balance to the left and fell onto the ground, and my right leg was hit by something.” (emphasis added)

45.Shortly afterwards in the same interview, he said:

“In the accident, at the very moment I just reached the end of the queue at the bus stop of route No. 89 bus, I felt that the right back side of my waist was being hit.” (emphasis added)

46.Noting the apparent discrepancy, the following exchange took place between the police officer and the plaintiff later on in the interview:

“Q: You said that you were hit after standing at the Kwun Tong Road bus stop for a while, but you also said that you were hit when you just reached the end of the queue at the bus stop of route No. 89 bus. Which one?

A:  I was hit once (I) reached the end of the queue at the bus stop.”

47.The police statement is the first written statement we have from the plaintiff in which he gave his account of the accident.  It is quite inexplicable why he was not able to describe in a consistent manner his movement just before the accident.  It is of note that in his initial answer, the plaintiff positively stated that he had been waiting in the queue “for a while” when he got hit.  He retracted that allegation quickly afterwards with no apparent reason.  If he could not recall the accident clearly, one would expect him to simply say so.

48.In his witness statement which he made in November 2013, he said that the accident occurred “before [he] got to the bus queue” and as he “walked to the queue”, he was hit from the back (see para 18 above).  This version is arguable slightly different from the final answer he gave to the police in 2009.  The discrepancy may be due to the lapse of time. But it remains to be the case that the initial police statement is internally inconsistent for no apparent reason.

49.Thirdly, the defendants’ evidence is on the whole more coherent than the plaintiff’s, notwithstanding some discrepancies, and is corroborated by photographic evidence.

50.The 1^st defendant’s account of how he had approached the bus stop for no 89, the speed at which he was driving and the lane he had been travelling on is consistent with and corroborated by the police photographs taken after the accident.  The photographs show that the bus stopped at the “巴” character marked on the road, which was the designated stopping position for bus no 89, and that the whole length of the bus was generally aligned with the lane with some distance from the kerb.  It would be less likely that the bus would have taken up this final position if it had hit the plaintiff on the pavement at a point between the blue lamp post and the bus shelter.  This is because in that situation the bus would have likely hit the bus canopy too and the 1^st defendant could not likely have managed to manoeuvre the bus into this final parallel position within the short distance from the plaintiff’s alleged impact point.

51.There is inconsistency within the 1^st defendant’s own evidence.  Within a few days after the accident, the 1^st defendant signed two written statements.  First, a traffic accident report which was an internal document of the 2^nd defendant.  Second, the 1^st defendant’s statement to the police.  In both statements, the 1^st defendant stated that as he was pulling up at the bus stop, he saw a man dash out to the roadside and he immediately stopped the bus.

52.That is to be contrasted with the witness statement he made in these proceedings about 4½ years later, in February 2014. There, he said:

“… However, before the bus reached the bus stop, and as the front of the bus was about two to three metres away from the opening in the bus-waiting railings of route 89 bus in my estimation, I suddenly heard a bumping sound from the left side of my bus near the front door. At that time, I did not know what had happened, so I immediately applied the brake and instinctively steered to the right to dodge. …” (emphasis added)

53.The discrepancy is that while the 1^st defendant was able to say positively back in 2009 that he saw the plaintiff dash out, he said in 2014 that he did not know what happened then but only heard a bumping sound.  He was not able to reconcile or explain the discrepancy when it was pointed out to him in cross-examination.  In his testimony, the 1^st defendant did not come across as an articulate person.

54.Mr Lim submitted that there is nothing sinister in the discrepancy.  In re-examination, the 1^st defendant confirmed that when he made the witness statement in 2014, he relied on his memory.  Mr Lim said that the two written statements made shortly after the accident are more reliable.

55.I should take into account the discrepancy when assessing the overall credibility of the 1^st defendant.  Unlike the inconsistency found in the plaintiff’s police statement, the 1^st defendant’s inconsistency arises across written statements that were made 4½ years apart. I consider that there is force in Mr Lim’s submission to the effect that the discrepancy is an innocent one.

56.The other discrepancy in the defendants’ evidence lies in the different impact spots identified by Tse and Mak in cross-examination – see para 29 above.  Mak’s marking does not support the defendants’ case.  On this, it is notable that before Mak proceeded to mark the spot on the exhibit, he said that he could not quite remember the location. The court asked him to go ahead to mark to the best of his recollection.  In re-examination, he was asked whether he wanted to re-consider the position. Mak’s reply was that there was no need as he could not recall where exactly the spot was.  The position which he had marked was only an approximate one as the accident took place many years ago.

57.It seems to me that it is understandable that due to the very long lapse of time, the witness might not be able to recall the details.  I take note that both before and after Mak made the marking, he stressed that he did not remember well the spot of impact.  For that reason, I do not consider that the discrepancy goes to undermine the credibility of the defendants’ case as a whole.

Factual findings

58.To the extent that the plaintiff’s evidence conflicts with or is inconsistent with the defendants’, I reject the former and accept the latter as true.

59.Accordingly, I find that the accident took place as described by the 1^st defendant, Tse and Mak.  The plaintiff was hit by the bus when he dashed out from the pavement to the first lane of the road.  The point of impact took place at the bus stop for no 89.  At that time, the 1^st defendant was driving at a slow speed along the first lane as he was pulling up at the bus stop.  As soon as the 1^st defendant saw the plaintiff dash out, he applied the brake but because of the sudden action of the plaintiff, the front of the bus still hit him on his right side.

60.In the circumstances, I find that the 1^st defendant was not driving negligently as alleged by the plaintiff or at all.  The accident was caused by the plaintiff suddenly dashing out to the road.

Conclusion

61.Liability against the 1^st and 2^nd defendants is not established.  I dismiss the plaintiff’s action.

62.I make an order nisi that the defendants do have costs of the action including all reserved costs, to be taxed if not agreed, and that the plaintiff’s own costs incurred while he was on legal aid be taxed in accordance with the Legal Aid Regulations.

63.I also direct my clerk to send a copy of this judgment to the Director of Legal Aid forthwith.

The plaintiff appeared in person

Mr Patrick D Lim, instructed by Mayer Brown, for the 1^st and 2^nd defendants