Wong Mun Na v. Chow Kwok Keung and Another

DCCJ000320/1979

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 320 OF 1979

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Coram: Judge Hooper, D.J. in Court.

Date of Judgment: 22 June 1979

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JUDGMENT

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1. In this action the plaintiff claims damages in respect of injuries suffered by her from a fall when she was on the omnibus of the 2nd defendant driven by the 1st defendant.

2. It is in fact common ground that at about 9:30 p.m. on the 22nd October 1977 the 1st defendant was driving the omnibus owned by the 2nd defendant, as an employee of the 2nd defendant, and that the bus was travelling along route 112. It is also common ground that part of this route includes King's Road in North Point Hong Kong Island. There was no dispute that the plaintiff, who is a young woman in her early 20's, fell down from the steps of the bus as she was making her way to the top deck of the bus, which was a double decker. As a result of this fall she suffered a fractured pelvis.

3. The plaintiff contends that the fall was a direct result of the negligence of the 1st defendant in that

The plaintiff also relied upon the doctrine of res ipsa loquitur.

4. The defendants denied that the 1st defendant was negligent and further pleaded in the alternative that the fall was caused or contributed to by the negligence of the plaintiff. They alleged that she was negligent in failing to take any sufficient heed for her own safety and failing to take sufficient advantage of the hand-holds and railings provided in the omibus for the safety of passengers.

5. The plaintiff testified that she got onto the bus at a stop in King's Road, North Point near the building called the Wan Wah Building and the time was about 9.30 p.m. There were several passengers in front of her and there was one behind her. There was a coin box at the entrance of the bus and having paid her fare she walked to the middle of the bus and then up the stairs to the upper deck of the bus. She conceded that there were some empty seats on the lower deck, but testified that she preferred to sit on the upper deck because there would be a lot of persons at the lower deck when the bus arrived at Causeway Bay. The bus was actually on a route which went through the harbour tunnel and eventually to the So Uk Resettlement Estate. She testified that the bus actually started before she had started to climb the steps and when she was at a position marked O on the photograph (Exh.D1(c)). She went up the staircase holding on to the hand rails with both hands. She was not able to grip the right hand rail very hard with her right hand because she had a handbag under her arm. She had turned the corner in the staircase and was about two to three steps from the upper deck when she felt a jerk. She testified that she thought the jerk was caused by the bus travelling at a high speed and added that there was a bend there though not a sharp bend. She fell backwards and landed in a sitting position on the lower deck with her head near the exit door. She shouted out "Ayah" then the driver stopped the bus and approached her and enquired if she was alright and helped her to get up. He offered to dial 999 to enable her to be sent to hospital but she felt there was no need for this. She testified that the driver asked "Did I drive very quickly?", but she did not make any answer because she was in great pain at that time and besides the accident had already happened. However she reiterated that she felt that he did drive fast. The bus subsequently moved on and she sat in the front seat until she arrived at her destination. It was only after she had got off the bus and was attempting to walk home that she realized how serious her injuries were. (She had infact sustained a fractured pelvis) She testified that the place where the bus stopped after the accident was about two to three buildings' length away from the bus stop where she had got on the bus.

6. Under cross-examination she conceded that she was aware that buses tend to sway. Furthermore she was not prepared to dispute that she was the last person on board the bus. She did however deny the defence suggestion that she had to rummage around in her handbag to find the money, maintaining that she had one dollar coin in her hand already. There was a little confusion in her answers about exactly where she was on the staircase when the accident occurred, but she stuck firmly to her testimony throughout her evidence that in her opinion the bus was going too fast. When at one stage she appeared to suggest that her left hand was not holding the railing at the time when the accident occurred, it became clear subsequently that she was saying that at that particular time she was sliding her left hand up the rail so that she hadn't got a firm grip on the rail. She also stuck firmly to her version that there had been a jerk which consisted of a sudden movement forward causing her to fall backwards. Somewhat surprisingly she said she did not feel any acceleration.

7. The defendant testified that the plaintiff was the last person on the bus and that she stood by the side of the coin box searching for money which she then put in to the coin box. She then went to the inner part of the bus and he then lost sight of her. He started to move the bus. Of course the bus started off in first gear and then he changed it in to second gear. After driving along for a while he then engaged the third gear. He drove on with the third gear engaged for a while and then heard some noices inside the compartment of the bus. He immediately stopped the bus and turned around to take a look, and then he saw the plaintiff had fallen down and sat at the place near the stairway. He went back to help her up. He denied that there had been any jerk in the motion of the bus, and he maintained that the maximum speed he reached was about 14-15 m.p.h. He maintained that the distance from the place where he started off from the bus stop to the place where he stopped the bus was about 3 bus lengths which he agreed was about 90 feet. Under cross-examination he denied that he had asked the question about driving too fast. He admitted under cross-examination that that was the first time that he had driven the bus in question, which was a new model of the Daimler Fleet Line Bus. Under cross-examination he did concede that there was a mirror or other equipment which would enable a person sitting in the driving position to take note of any passengers within the bus. He also agreed that he did not check that position inside the bus before driving off. When it was suggested to him that in order to accelerate the bus through to the third gear and eventually stop the bus all within a distance of 90 feet, it would have been necessary for him to rapidly accelerate the bus he disagreed. He did however concede that there would be a surging forward when the bus changes from second to third gear but he denied that it was quite "forcible".

8. The main issues in this case are whether the 1st defendant drove the bus too quickly, and whether there was in fact a jerk in the movement of the bus. If that were established the plaintiff would obviously be able to establish that the 1st defendant was in breach of the duty of care which he owed to the passengers on the bus. There is a dispute as to whether the 1st defendant asked the question about whether he was driving too fast, when he went back to assist the plaintiff. As the 1st defendant was looking into his mirror and as no other passengers have given evidence, there is no evidence to rebut the evidence of the plaintiff that she was holding on to the railings with both hands.

9. Having considered the facts and circumstances in detail in this case, and having considered the able submissions made on behalf of both the plaintiff and the defendants, I have come to the conclusion that the 1st defendant was in breach of the duty of care which he owed to his passengers, in that he drove too quickly in the circumstances and that the vehicle did jerk forward thus causing the plaintiff to fall backwards. The plaintiff impressed me as being a witness who was a truthful witness. She didn't try to make a song and dance about the accident at the time, and only realized how seriously she was injured afterwards. Her evidence indicated that the 1st defendant showed a lot of concern for her after the accident had happened. She formed the impression that the bus was travelling fast while she was still on the lower deck. I appreciate that Mr. Mumford has suggested that this part of her evidence is nonsense because she was very close to the stairs, but the point is the bus did not travel very far. It must have moved away from a standing position very rapidly for her to reach such a conclusion. Although the plaintiff had said that she did not feel any acceleration, I find that there must have been acceleration as the bus was moving from a stationary position into a moving position. The only possible explanation for a bus to reach 15 m.p.h. and to pass through two gears in the process indicates that it must have been accelerating, and the short distance that it travelled indicates that it must have been accelerating rapidly. The plaintiff is a young woman of 25 years well accustomed to travelling on public omnibuses.

10. The defendant on the other hand weakened his evidence considerably by suggesting that there had been no jerk. Furthermore I found his evidence very difficult to believe regarding the various speeds he was going in the different gears and the distances that he went before finally stopping.

11. I find that the probability is that the 1st defendant drove too rapidly and that it was because he was driving quickly with the throttle on hard, that the bus jerked forward when changing from second gear to third gear. In my view this is the most probable explanation for what happened. It seems to me extremely unlikely that a young woman such as the plaintiff, who had each hand on the supporting railings should have fallen backwards in the way she described if the jerk was not an abnormally severe one. The very fact that the 1st defendant denied that there was such a jerk raises the question why should he deny this.

12. Not only do I find that the 1st defendant drove too quickly at the time, but I also find that he was in breach of his duty to ensure the safety of the passengers on his bus. The plaintiff was a young woman but one may shudder to think what might have happened if she was an elderly woman. In my view the plaintiff should have checked in the mirror or equipment provided for that purpose, and having ascertained that passengers were mounting the staircase to the upper deck, he should have been extra careful to see that there were no severe jerks.

13. I therefore find for the plaintiff on the issue of liability.

14. I now come to the quantum of damages.

General Damages

15. Two medical reports were admitted by consent in evidence. The first is the report of Dr. L.S. Hung of the Orthopaedic "B" Unit of the Queen Elizabeth Hospital dated the 19th December 1977. This indicated that she was examined on the 22nd October and that the only injury was a mild tenderness over the right hip which on X-ray revealed a fractured pelvis. Treatment was conservative. She was discharged on the 29th October 1977 when she could walk satisfactorily without pain. However she was readmitted the same day for passing blood in her urine. The Surgical Unit was consulted but she refused to have the treatment recommended and eventually was discharged on the 3rd November 1977. The second medical report was from Dr. Wedderburn which set out a similar history as to her treatment. When she left hospital the second time she used crutches for 6 weeks and then could walk normally. She is a sales clerk with Singapore Airlines and was off work for two months. She got sick leave pay for one month only. On her last follow-up on the 19th November 1977 she complained of some low backache. This was almost certainly postural and connected with her difficulties with walking, but X-ray of the lumbar sacral spines showed no abnormality. Dr. Wedderburn reported that on examination she had full movement of the right hip and there was no pain or pressure on the pelvis. When she was lying on her face a slight wasting of the muscle at the upper end of the thigh on the medial side could be seen, but he maintained that she had good muscle in both thighs. Dr. Wedderburn's report indicates that the fracture of the pelvis had united in an excellent position and that she would suffer no impairment as a result of her injury. His report did however contain a cautioning that she should inform her doctor that she had had a fractured pelvis if she became pregnant in the future.

16. The injuries suffered by the plaintiff in the present case do not appear to be very serious and she has made an excellent recovery. I think the submission of Mr. Mumford on the question of quantum was near the mark when he suggested that damages should be in the region of $3,000-5,000. The authorities referred to by Mr. Chandler, the minimum award of which was $24,000, all related to cases where the injury was very serious and would have everlasting effects and in some cases where they were combined with other injuries as well.

17. Taking all things into account I award a sum of $6,000 in respect of pain and suffering.

Special Damages

18. All these are agreed with the exception of the claim for bonsetting fees $100 and nourishing food $840. So far as the claim for bonesetter fees are concerned I disallow this claim because the bonesetter himself has not given evidence as to the treatment he gave and whether it was necessary, neither have any receipts been produced to the Court. Neither am I satisfied that sufficient ground has been made out for me to award a sum of $840 in respect of nourishing food. This subject is governed by Wong Yiu-wah v. Hung Ping-kwan Civil Appeal 600 1973 and requires that evidence of its suitability is usually by a doctor and receipts should be produced. However Mr. Mumford does not object if an amount $200 is allowed in respect of nourishing food, and in view of the fact that there is a strong belief in the local community that this sort of food is of assistance when persons are injured with fractures of the bones, I will allow $200 for this. That makes a total of $1,302 in respect of these special damages.

19. I therefore give judgment for the plaintiff in a sum $6,000 general damages plus $1,302 special damages making a grand total of $7,302.

20. So far as the general damages are concerned I award interest on them at 8% from the date of service of the writ to the date of judgment. So far as the special damages are concerned interest should be paid at the same rate from the date that the expenses claimed were incurred or the salary should have been paid. There is no information as to exactly when these various amounts were paid but it seems clear that the claim for $940 in salary must relate to a period of approximately two months after the accident. It also seems that by this time all the other items claimed would have been paid. In the circumstances I award interest at 8% on the sum of $1,302 from the 22nd December 1977 until the date of judgment and in this connection I refer to the remarks I made in Victoria District Court Case Civil Jurisdiction Case No. 1156/78.

Representation:

Mr. Chandler for Director of Legal Aid for the plaintiff.

Mr. E.C. Mumford for both defendants.