Fung Kiu Oi v. Lui Pun Kwan and Another

HCA004596/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 4596 OF 1978

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Coram: Mr. Commissioner Mayo

Date of Judgment: 11th February, 1980.

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JUDGMENT

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1. The Plaintiff claims damages in respect of injuries she sustained as a result of falling out of a Bus driven by the 1st Defendant and owned by the 2nd Defendant.

2. It is common ground that the Plaintiff was a passenger on a Cross Harbour bus on the morning of the 2nd June 1978 and was accompanied by her husband. The Plaintiff and her husband were aged 76 and the Plaintiff was then in a physically frail condition. She gave evidence that she had deficient eyesight, was suffering from rheumatism and needed to use a stick to steady herself. That the time of the accident she was on her way to visit a Doctor and was accompanied by her husband who was taking care of her.

3. The Plaintiff and her husband on the one part and the driver of the bus Mr. Lui on the other part gave conflicting versions of what transpired when the Plaintiff fell from the Bus.

4. The Plaintiff gave evidence that the bus was crowded and that she was sitting 2 seats behind the driver with her husband. They intended to disembark from the bus at the first bus stop immediately after emerging from the Cross Harbour tunnel. When the bus came to a halt she and a number of other passengers got up and made their way to the Exit to get off the bus. She said that she went to the door at the front of the bus and when she was at the door it was still open. The bus unexpectedly jerked forward and this movement made her loose her balance and she fell out and sustained serious injuries including a broken leg. She said that the bus only stopped after other passengers had raised an alarm. Her evidence was in most important respects corroborated by the evidence of her husband Mr. Cheung Lip Ping. He said that he was about 2 or 3 paces behind the Plaintiff and that there were a large number of people. He corroborated his wife's evidence that the door was open at the relevant time and that the bus did move off while the doors were still open and that this was the reason why his wife fell from the vehicle.

5. Neither the Plaintiff nor Mr. Cheung fared at all well under cross examination. Both of them gave vague and contradictory replies to questions which were put to them. I regret that it was strongly my impression that the Plaintiff's recollection was faulty and this may in large part have been due to the affliction she was suffering with her eyesight. She gave evidence, as I have said that she attempted to leave the bus by the door at the front of the vehicle which I am satisfied is normally used by passengers boarding the vehicle. Mr. Cheung denied that he was supporting the Plaintiff while they were trying to disembark and I find this evidence hard to believe. The Plaintiff said that she did not notice whether the doors were closing or only partially open but insisted that she fell out of the vehicle as a result of it suddenly moving off while the doors were open.

6. Mr. Lui gave evidence that after stopping the bus at the bus stop he opened the doors at the centre of the bus to enable passengers to alight. He said that there are 2 mirrors installed on his bus enabling him to observe passengers disembarking, one inside the vehicle, the other outside. He said that he was unable to use the interior mirror due to his line of vision being obstructed by passengers standing in the vehicle. He could however use the external mirror and did so. Shortly after opening the centre doors he opened the front doors to enable boarding passengers to board. After passengers had completed alighting from and boarding the vehicle he activated the switch to close first the front doors and subsequently the centre doors. When the centre doors were almost closed he noticed in the external mirror a walking stick and part of what appeared to be a leg protruding from the centre doors. He then reopened the centre doors and saw that an elderly lady was trying to steady herself with her stick but was unable to do so and fell to the ground. He then got out of the vehicle and attended to the Plaintiff. He strenuously denied that he had moved the bus prior to this accident.

7. There is a problem concerning Mr. Lui's evidence. Shortly after the accident he received a summons in which he was charged under Regulation 11 (d) and 239 of Road Traffic (Public Omnibuses Public Light Buses & Public Cars) Regulations Cap. 220 of failing to take all reasonable precautions to ensure the safety of passengers alighting from a vehicle. He pleaded guilty to this offence by letter and was fined $100. Mr. Lui was asked why he pleaded guilty to this offence. The explanation he gave was that he was anxious not to occasion himself inconvenience or waste his time. Also he said that at the time he thought that he had no defence to the charge as it was a fact that the lady had sustained injuries from falling off the bus he was driving. In other words as he did not have the advantage of legal advice it was his impression that the offence was an absolute offence. He now realised that he should not have done this as in retrospect he could not think of anything he could have done to have avoided this accident from occurring. The legal position appears to be governed by the principals laid down by Lord Denning in Stapple & Royal Insurance Co. Ltd. 1971 IQBD 50. These principals are laid down on p. 72 of the report of this case.

8. The effect of such a conviction is to shift the legal burden of proof of the relevant evidence. The explanation given by Mr. Lui is entirely credible. I found him to be an excellent witness. Notwithstanding the conviction I have referred to, and the necessity for him to discharge the burden of proof which is upon him, I have no hesitation in accepting his version of the events which occurred on the 20th June 1978 rather than the evidence given by the Plaintiff and her husband. I find as a fact that Mr. Lui did wait a reasonable period of time before closing the centre doors. He did not start his bus and he reopened the doors whereupon the Plaintiff fell out of the bus in the manner described. I also find that the Plaintiff has failed to establish any negligence on the part of Mr. Lui or the 2nd Defendant. The Plaintiff has failed to establish that Mr. Lui did not keep a proper look out or heed her presence. I also find that the Plaintiff has failed to establish that Mr. Lui had insufficient regard to the safety of the passengers on the bus. No evidence was deduced that the bus was either overcrowded or that passengers were allowed to stand in front of the yellow line which is demarcated in the bus indicating the point beyond which passengers are not permitted to stand.

9. I regret that for the reasons I have given the claim must be dismissed.

10. It may however be of assistance for me to indicate what damages would have been awarded had my decision been otherwise. At the commencement of these proceedings I was advised by the parties that they had agreed that on the basis of 100% liability general damages for pain and suffering and loss of amenity should be assessed at $12,000.

11. No claim is made in the Statement of Claim for general nursing care other than the claim which is based on the husband having to give up his employment to look after the Plaintiff. I find that this part of the claim has been established and it is possible to quantify damages attributable to the husband's loss of earnings. He was earning between $600-$700 per month doing light carpentry work for his nephew's firm. The nephew Mr. Cheung Pak gave evidence that he would only have been able to continue employing the husband up to the Chinese New Year 1979 as there was no light carpentry work available after this time. For this period of 7 months I would have awarded $4,500. It was agreed that his travelling expenses would have amounted to $150. I regret that I would not have been able to award any damages for "tonics & customary foods" being given to the Plaintiff. According to the evidence of all parties the only food which was supplied was such staple items as, bread, rice, fruit and chicken legs. Simple food of this nature is normally provided in Government hospitals and I can see no reason to award any additional damages.

12. I regret that I would not have been prepared to award any damages in respect of the Plaintiff's son Cheung Pak Sum's loss of earnings. His evidence and the evidence of his cousin who is his Employer were conflicting and I find it hard to believe that Mr. Cheung would not have been given time off by his cousin to visit the Plaintiff particularly as it would have been possible for Mr. Cheung to make up any lost time outside normal working hours. I would however have been prepared to allow $100 for his travelling expenses.

13. Judgment shall be to the Defendants. Costs also shall be to the Defendants and the Legal Aid Regulations shall apply to the Plaintiff's costs.

Representation:

Mr. David Yam (Director of Legal Aid) for Plaintiff.

Mr. Francis Eddis (Ngan & Wong) for both Defendants.