Lai Pui and Another v. China Motor Bus Co Ltd and Another

HCA000186/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-----------------

-----------------

Coram: Mr. Commissioner Liu Q.C. in Court.

Date of Judgment: 11th November, 1977.

-----------------

JUDGMENT

-----------------

1. On the 5th of October, 1975, at or about 4 p.m., one of the plaintiffs who is a co-administrator of the estate of his deceased wife, Mr. Lai Pui, left home with his wife and daughter with a view to acquiring some cloth. That was a day when a typhoon signal was hoisted, and at that particular time the sky was overcast. Mr. Lai and his family intended to cross King's Road from south to north at the junction of Tin Chiu Street in the vicinity of the depot of the China Motor Bus Company in North Point. Nothing of significance transpired. The Lai family took precaution, the Court was told, to cross to the safety island beyond the tramways, and in the process of crossing the remainder of King's Road with pedestrian light in their favour an accident occurred, in which Mr. Lai Pui was himself knocked over and suffered trivial injuries but Mrs. Lai, the deceased, was injured and as a result thereof subsequently died early next day.

2. There have been allegations and counter-allegations, but it boils down eventually to credibility.

3. First of all, if I may say that the duty and obligation both of a driver and a pedestrian is left vaguely defined so far as such crossing is concerned but that this ill-defined path has been rendered less complicated by the presence of a pedestrian light and traffic light at the crossing.

4. It is, of course, sad that Mrs. Lai was killed as a result of the accident. The tragic loss to the Lai Family in this case no doubt deserves the most sympathetic consideration. On the other hand, the question of liability necessarily puts in issue the conduct of the 2nd defendant in his calling as a bus driver which is no doubt a matter of no less importance.

5. From the evidence of Plaintiff Lai and his daughter and the defendants' evidence, it would appear that the bus in the inner lane was not travelling at any great speed. This is somewhat corroborated by the position of Mrs. Lai after she had been knocked down by the bus driven by the 2nd defendant in the inner lane. She was just in front and slightly to the right of the bus in the inner lane, and Mr. Lai Pui himself was only knocked over taking his daughter down with him, suffering no severe injuries. Therefore, it is virtually common ground that the speed of the bus in the inner lane was not excessive.

6. The plaintiffs' case is that when the bus in the inner lane started moving, the bus on the outer lane was stationary i.e. the inner lane bus started against red traffic light. Even accepting the evidence given on behalf of the plaintiffs, with the bus on the outer lane stationary and with the bus on the inner lane travelling at a starting speed, it would probably not have been difficult for the Lai family to take notice of the approaching bus in the inner lane, and if they had exercised due diligence it would probably not have been difficult for the Lai family to avoid the collision. On the other hand, again if evidence given on behalf of the plaintiffs were to be accepted, it would probably not have been difficult on the part of the 2nd defendant, a driver of the bus in the inner lane, with a better and wider view, to make a successful effort to avoid a collision with Mr. Lai and his wife.

7. The Defendants' case is that the 2nd Defendant's bus was travelling slowly at about 15 m.p.h. Mr. Lai and his daughter claimed that the bus some 7' or 8' away from Mr. Lai in the inner lane, surged forward "suddenly and abruptly" and that "as soon as it moved" Mr. Lai was grazed. It is therefore not in dispute that the bus was not travelling at any great speed. Assuming the starting speed of the bus was 5 m.p.h. (i.e. 7 1/3' per second), it would take slightly over a second to travel 7' - 8'. If in fact both buses had been stationary, the Lai family would have had slightly over one second to step back. At 15 m.p.h. (i.e. 22' per second), it would take less than a third of a second to cover the same distance of 7' - 8'. That would leave very little time for the Lai family or the driver to take any evasive action, and that was more probably what happened. If indeed both buses were in motion it was highly improbable for both buses to attempt to jump the red light at the same point of time. It has never been suggested that these two buses were in league as conspirators to break traffic regulations at the junction of Tin Chiu Street.

8. I will turn next to the question of credibility. Both Mr. Lai and his daughter gave evidence and denied, inter alia, having given a part of their statements to the police. It was also denied that none of their statements was read back to them; nor were they allowed the opportunity to go through the same. Counsel for the defendants sought to make capital of certain discrepancies between the recorded statements and the viva voce evidence of the plaintiff and his daughter. Having read the statements given by Mr. Lai and his daughter, it may very well be that the discrepancies cannot be said to be of vital importance, but I should hasten to add that there seems to be ample justification for counsel for the defendants so to criticize. But what is most significant, as far as I can see, is their denial that the statements were read by them or they were given opportunity to go through the same. Both police officers admitted that they had little recollection of what transpired but were adamant that the usual routine or the standard practice was followed in that they would do either one or the other.

9. I do not accept counsel's suggestion of human error and distress as causes for the statements. The denial of a wet road surface and feigned ignorance of the contents of their statements do Mr. Lai and his daughter little credit. I find them both unimpressive as witnesses.

10. The defendants' case is that the 2nd defendant's bus was travelling slowly at about 15 m.p.h. As for the 2nd defendant driver, Mr. Lo, he explained that he immediately braked after he heard the sounding of horn and abrupt application of the brake by the next bus, that as his view to the right was partially obstructed, he was quite unaware of any real or imminent danger, that the weather and traffic conditions particularly the wet road surface made emergency braking unsafe, and that when the Lai family dashed out onto his path Le braked abruptly. I accept his evidence which was, to a great extent, corroborated by the evidence of Mr. Wong.

11. I have had opportunities of observing the demeanour of Mr. Lai and his daughter, Miss Lai, the police officers and the other witnesses. In the end, suffice it for me to say that in so far as the evidence of Mr. Lai and Miss Lai conflicts with the evidence of and for the defendants, I accept the evidence of and given on behalf of the defendants.

12. Counsel for the plaintiffs sought to make great play of the recollection of Mr. Wong, the driver of the bus on the outer lane, on the sequence of his conversation with the 2nd defendant. This accident happened quite some time ago, and it is not unusual for honest witnesses to retain only a faint memory of it. The 2nd defendant and the witness Mr. Wong, the driver of the bus on the outer lane, impressed me as witnesses, and I have not lost sight of the trivial discrepancies between the evidence of the two. I am particularly impressed by Mr. Wong who tried his utmost to be accurate and was determined to tell the truth. He was almost timid, and his manner reserved. Having seen and heard Mr. Wong in this trial, I cannot accept that a man of his disposition could have been audacious enough to twist the truth. Mr. Wong is not a defendant in these proceedings, and the whole case was not geared for his protection as it were. As to whether or not Mr. Wong may be held responsible for the accident, I really should refrain from making any comment.

13. I find as a fact that both buses were in motion when the traffic light was green in their favour and that the 2nd defendant was put in such a position that it was impossible for him to avoid colliding with two of the Lai family. The actions he took, I find, were in the circumstances appropriate and justified by the situation which confronted him. I am driven to the conclusion that the 2nd defendant had taken all measures as were reasonably required of him by the circumstances and that the accident was wholly made unavoidable by and entirely attributable to the fault of the Lai family who dashed across against the pedestrian light at that particular juncture when the light was not in their favour. After all, when the daughter, Miss Lai, gave a statement to the police she said, "At the time of the accident I am not clear what colour of signals were being shown."

14. I am far from being impressed by the demeanour of Miss Lai and of her father who gave me an uneasy feeling that they were totally committed to a version which they had decided to repeat in Court. The plaintiff Mr. Lai and his daughter, Miss Lai, seemed to be fairly determined to stop at nothing at all but to adhere to a story in their favour which they had chosen to relate. With the police evidence, it would be too much to assume that the police officers had been so arbitrary in taking statements. Furthermore, certain amendments had been made by Miss Lai in different places in her written statement. Lastly, she signed underneath a statement to the effect that she agreed with it.

15. I do not wish to say too much in order to be kind. I have assessed the question of credibility on both sides not only per se but against the probabilities reflected by the evidence. In the end, I come down strongly in favour of the defendants in arriving at the factual findings which I have just enumerated.

16. If I were wrong, of the deceased's total monthly earning in the region of $500, I find that she contributed $300 towards the maintenance of the other members of the family. I would give a multiplier of ten years. That would make a total of $36,000. On top of that, I would grant $8,000 for loss of expectation of life, amenities and the like together with undisputed special damages at $56.

17. But in these circumstances, regrettably I am driven to the conclusion that the 2nd defendant exercised all due diligence. He has in those circumstances taken every reasonable precaution to avoid the accident, and he cannot be said to have been negligent.

18. The only order which remains for me to make is: Action dismissed with costs to the defendants.

Representation:

Mr. Christopher Young instructed by Messrs. Haldane & Co. for Plaintiffs.

Mr. Mumford instructed by Ngan & Wong for both Defendants.