Yum Sing v. Kwong Wai Leung and Another

HCA002204/1982

BETWEEN

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Coram: Hon. Liu J.

Date: 4 August 1983

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JUDGMENT

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1. On the 5th June 1980, the plaintiff was in the vicinity of a bus stop in Hip Wo Street near its junction with Yuet Wah Street in Kowloon. The time was after 11:00 a.m. A bus driven up by the 1st defendant was pulling into this bus stop. When the bus was on its way out of the bus stop, the plaintiff was found to have been injured.  From this incident, the present claim arose.

2. Quantum has been agreed at $59,752, being as to $20,000 thereof for pain, suffering and loss of amenities, as to another $35,532 thereof for loss of future earnings and as to the balance of $4,220 thereof by way of special damages. It was further agreed between the parties that the general damages of $20,000 should attract 2% annual interest from the date of service of the writ to date of judgment and the sum of $4,220 by way of special damages to be accommpanied by an interest of 6% per annum running from the date of the accident to the date of judgment.

3. Only liability was in issue. The plaintiff herself testified and called a police officer, to whom a statement was made soon after the accident. The only witness called on behalf of the defendants was the 1st defendant driver himself.

4. According to the plaintiff, she was leaving her place of employment slightly earlier that day with a view to obtaining travel documents for her application for a China trip. She was the last in the bus-queue and she was the last to board. For boarding the bus which had been put into that stop by the 1st defendant, having looped around her right wrist a polythene bag containing pork bones which she had earlier purchased from her butcher, according to her evidence, she held on to a slanting handrail with her right hand. No sooner had she managed to board the bus then she deposited with her left hard three twenty cents coins in the coin-box. After she had so deposited the coins and had walked in a step or perhaps two, the bus started off by turning sharply or violently to the right. At that particular point of time, she said, she was just behind the driver shortly before a set of staircase leading to the upper deck with a view to looking for a seat in the inside of the bus. In her own words, she said: "I had walked inside intending to find a seat to sit on". Due to the alleged violent sway of the bus to the right, and perhaps of the jerks of the bus as well, she was dizzy and jerked several times thus causing herself to step backwards three or four steps stumbling out of the front gate of the bus. She further explained that before the spraying and/or jerking motion of the bus, she was in the course of trying to grab one of the ceiling hand-rails inside the bus. After the accident, she told the police constable PW2 that she knew not the reasons why she had fallen out of the bus which was said to have run over her left leg.

5. When the driver came to give evidence, he gave the court a completely different version. He said that the bus started off after some passengers had boarded it and after he had closed the gates, both the exit and the front entrance gates and that in the course of pulling out of the bus stop, he had occasion to glance over to the left mirror and say the plaintiff stumble. Thereupon, he stopped the bus which had by then travelled about half a bus length. He alighted from the driver-seat, presumably, and found the plaintiff injured lying next to the middle of the bus. The plaintiff was assisted, ambulance summoned and I need not go into particulars of her treatments and hospital confinement. The driver has pleaded guilty by letter to a charge of failing to take all reasonable precautions to ensure the safety of a passenger entering the bus.

6. Let me turn back to the evidence of the plaintiff first. She is an illiterate and appeared to be a woman of little polish or sophistication. She believed herself to be 62. Route No.23 bus was her usual transport. She described a slanting hand-rail and a staircase in front which are non-existent in the bus in question as shown in the bundle of photographs marked "B". She must have been utterly confused or wholly irresponsible on these aspects of her evidence. She was quite uncertain as to whether in fact the bus also jerked several times. She testified once most definitely that she was holding onto a ceiling hand-rail at the time of the alleged violent movement of the bus, but later she readily retracted it telling the court that she was not actually holding onto any hand-rail but was merely in the course of attempting to do so. Before she was coerced into retracting her evidence, she claimed that as the horizontal hand-rail was too high for her to grip firmly onto and as the sway of the bus was "forceful", she lost her grip. Upon having been interpreted to her her statement to the police, she explained that she was only "in the act of" trying to reach the horizontal rail, but she managed to go into details for both of these contradictory versions. She was quite undecided how far she was in the bus: in chief, she said, she had walked just one step into the bus after having deposited three coins in the coin-boy; then, apparently she wished it to be thought that she was further in and said in re-examination that she had taken two steps. I have made reference to her allegation of, the staircase in front and also to the alleged slanting hand-rail. She also told the court at one time that the bus swerved to-the left upon being taxed on her alleged causation. Almost immediately, she denied having given that evidence and reverted to her version that the alleged violent motion of the bus was in the course of its pulling out of the stop turning sharply right. I have given all these matters my careful consideration as I have to counsel's submissions made on her behalf. She is far from being an impressive witness, and her evidence is less than satisfactory.

7. I turn then to the facets of the 1st defendant's testimony. He explained to the court that he was upset by the incident. That, he claimed, accounted for his statement not being in perfect unison with his court evidence. In any case, I do not find the difference of any real importance. When he was summonsed, he attended in person at the Magistrates' Court. For reasons unexplained, it seemed to him that his case was not called. He took that day off, which turned out to be uneventful. He pleaded guilty by letter. Among his other explanations, he also told the court that he would not have done so had he been aware of the plaintiff's allegation of having fallen out of his bus. Someone was found injured, outside but in connection with his bus, and instead of wasting a day or two on the matters which he had been rightly or wrongly advised as trivial, he selected the practical approach and pleaded guilty by letter expecting a small fine not incommensurate with his otherwise loss of pay. He told the court that the first time he saw the plaintiff was when he was pulling out of the but stop in his left mirror. As far as the 1st defendant is concerned, as in the case of the plaintiff, as to whether or not the plaintiff was inside the bus at the time when he was pulling out of the stop and as to whether the front gate was open, there could not be any mistake. Therefore, it was a direct conflict of evidence between the plaintiff and the 1st defendant. I should mention in passing that from the nature and extent of the injuries, no particular inference may be drawn as to whether the plaintiff was in fact inside or outside the bus at the material time.

8. In addition to other matters in favour of the plaintiff, the plaintiff's version has some consistency as reflected in her statement given to the police soon after the injuries. The plaintiff's version is also, to some extent, substantiated by the plea of guilty of the 1st defendant. But the plaintiff has not been able in a position to clearly describe the situation in which she allegedly found herself. She was, as observed in court, evasive in her own naive way. Particularly from her detailed descriptions of both how she lost her grip of the horizontal rail and, in her later version, how she tried to grab it, I have formed the impression that she was not an honest witness. As against that, the court had the plain, direct and unprevaricating evidence of the 1st defendant. I accept his explanations for his plea of guilty to the charge 1 have referred to. If, in fact, the plaintiff had been inside the bus and been seen stumbling out of it at the time when the 1st defendant was taking the bus out of the stop with a wide-opened gate, such incident would have occurred right in front of or just next to the 1st defendant and any driver would have been expected, upon seeing such an emergency involving an elderly lady, to immediately stop the bus which would not have then travelled or continued to travel at any considerable distance such as that of half a bus length. But this is no more than one of the peripheral matters suggesting what could properly not have happened. A decision will ultimately have to be made, after having taking into consideration all the circumstances, including credibility and demeanours of all the withesses, as to which version this court would prefer.

9. I prefer the evidence of the 1st defendant driver to that of the plaintiff's without hesitation. On the balance of probabilities, I find that the entire incident occurred as related by the 1st defendant to this court. There has been no application for amending the plaintiff's claim to introduce other allegations of negligence on the premise that the plaintiff was in fact outside the bus and not inside the bus, and I need say no more save that the plaintiff's action be dismissed.

10. If I were to find in favour of the plaintiff accepting her allegations against the defendants, I would not be prepared to say that the plaintiff was, in the case she has put before this court, herself in any way negligent. A passenger, in the given circumstances of this case, in getting further into the body of the bus for a vacant seat, is expected to release one support for another from time to time. It is a different situation from that of a passenger who has selected a particular place to stand inside the bus. In the plaintiff's case, if accepted, if she had been closer to the front pate which was said to remain open, than she would have this court believe, is would have been equally sensible for her to expect the driver not to start the bus before the closing of the gate, thus providing her sufficient time Lo get inside for a seat as quickly as she possibly could without holding on to any support. Even if she had been doubly cautious in using the available rails equally it would not have been careless of her to release one support for another on her way in. If I were to find in favour of the plaintiff, accepting her version, I would not find against her in the causation of this accident any contributory negligence.

11. In conclusion, I order:

Representation:

Mr. P.W. Wong instructed by Messrs. Chung & Kwan for the Plaintiff.

Mr. M. Ozorio instructed by Messrs. Munro & Co. for the 1st & 2nd Defendants.