Tsui Yuk Po v. Kwok Yui Tong China Motor Bus Co Ltd
Read the full judgment text of HCA 3508/1982 on BabelCite. This High Court CFI judgment.
1. In August 1979 Tsui For-lam came legally to Hong Kong in order to secure a better future for himself and to make some financial provision for the poor family he had left behind him in China. He was employed by a distant relative as a trainee mason and general decorator and, the Court was told, was paid some $2,400 a month after deduction for his board and lodgings. He made remittances to the family which consisted of father, mother, grandmother, two sisters and a younger brother. Both mother
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HCA003508/1982
IN THE SUPREME COURT OF HONG KONG HIGH COURT ____ BETWEEN
______ Coram: Hon. Kempster, J. Date: 17th November, 1983 ____________ JUDGMENT ____________ 1. In August 1979 Tsui For-lam came legally to Hong Kong in order to secure a better future for himself and to make some financial provision for the poor family he had left behind him in China. He was employed by a distant relative as a trainee mason and general decorator and, the Court was told, was paid some $2,400 a month after deduction for his board and lodgings. He made remittances to the family which consisted of father, mother, grandmother, two sisters and a younger brother. Both mother and grandmother were and are in poor health. 2. Alas for his and the family's hopes and aspirations Tsui was knocked down by a double-decker omnibus in Chai Wan Road, a dual carriageway, at about 10:00 a.m. on the 20th February 1980 sustaining injuries from which he died on the 1st of the following month. He was 16 years old. 3. Tsui's father then made his way legally to Hong Kong to assist in the preparation of a claim for damages against the driver and the owners of the omnibus. He has obtained casual employment and himself remitted money to the remaining members of the family in China. He now intends to stay here. 4. Letters of Administration were granted to the father on the 22nd May 1981 and a writ was issued on the 3rd flay 1982. The father was named as plaintiff; bringing proceedings for the benefit of the estate under the law Amendment and Reform (Consolidation) ordinance, Cap. 21, and on his own behalf and that of the other members of the family already described, all of whom are said to be dependants, under the Fatal Accidents Ordinance, Cap. 22. 5. The driver and, vicariously, the owners of the omnibus namely China Motor Bus Co. Ltd. are alleged to have been negligent in the respects set out in paragraph 4 of the Statement of Claim which reads:
6. Really by way of further and better particulars the pleader added the following circumstances:
7. As no evidence was called on behalf of the defendants the only direct "evidence" of the collision was derived from oral and written statements made by the driver to the police shortly after the event and in the statement of the 12th March 1980 to which I have just alluded. These statements were relied upon by the plaintiff partly for admissions and partly to show the circumstances in which the deceased was struck. The substantial truth of the driver's account overall is accepted to the extent that Mr. Leung, on behalf of the plaintiff, concedes a degree of contributory negligence on the part of the deceased. As I understood the position only one assertion made by the driver to the police is strongly contested namely the figure which he gave for the speed of the bus before he applied the brakes. In the circumstances it will be material for me to recount what, according to police officers, the driver said about the accident as soon as he was asked about it. To Constable Ho Chi-ming who reached the scene, which was adjacent to the Hong Kong Jockey Club Clinic on the west-bound carriageway of Chai Wan Road, at about 10:00 a.m. he said:
The police officer described and marked on a plan where the omnibus had partially mounted the central grass reservation. 8. Later in the day the same police officer Ho Chi-ming took a written statement from the driver in which "he told me he had engaged third gear and his speed was some 20 m.p.h. Outside the Jockey Club Clinic there were two stationary public light buses picking up or setting down passengers. This was on his left". Then the officer quoted directly from the statement:
9. I should indicated at this juncture that the plaintiff relies on the expression "rushed onto the grass" as indicating a degree of speed at the time. Having regard to the fact that a ready command of language is not always a characteristic of bus drivers employed by the China Motor Bus Co. I attach relatively little importance to this terminology but do take it into account. 10. In the statement of the 12th March 1980 the driver used these words in describing the accident:
11. So some days after the accident the driver's recollection had somewhat altered in that the man or boy was said to have walked rather than run from behind the obsecurity of the public light bus. 12. Constable Ho Chi-ming, who lives not very far away from the scene of the accident, also told the Court that the weather was fine and that public light buses had in the past stopped to allow passengers to board and alight adjacent to the Clinic. He described the damage to the bus. The windscreen in front of the driver had shattered. He saw no damage to the body-work though a subsequent witness mentioned slight damage to the body panel. He pointed out the warning signs on the slope past which the omnibus had been driven by reference to a bundle of photographs some of which he marked. There were several signs using the expression "KEEP IN LOW GEAR" and there was a sign indicating a steep slope. The last of those signs, which I considered the most significant, appears in the photograph we have numbered 7 and is sited not very far from where the collision between the omnibus and the deceased took place. It reads "KEEP IN LOW GEAR" and those words I assume, I don't think anyone will contradict me, appear both in English and Chinese. The speed limit in Chai Wan Road was 30 m.p.h. and the area was regarded as an accident black spot albeit there was no related sign. This, the officer explained, was because there had been brake failures on the slope which had caused accidents. 13. The part of the police officer's evidence upon which the plaintiff particularly relied was embodied in the sketch made at the time [Ex. P. 2] and in a more detailed drawing made on graph paper called [Ex. p. 3]. The measurements shown on these plans had been made, or at least some measurements had been made, with the assistance of the driver to whom the officer said he had stated what figures he from time to time recorded. And Ex. P. 3 describes the length of brake marks which were found on the road leading from the back of the vehicle uphill. They were described as having a length of 20.2 metres. On the sketch from which the measurements were derived [Ex. p.2] "20" currently appears on the relevant brake mark but it is reasonably apparent on not too close examination that the figure has been altered or over-written. The officer was subject to close cross-examination as to this and as to the accuracy of the measurement of the brake mark apparently recorded. 14. I had some difficulty in accepting the officer's statement that there had effectively been no alteration in the figure given for the longer brake mark on Ex. P. 2 and, particularly, the suggestion that it had been altered because of its close proximity to other figures. Looking at the sketch that seems a very poor explanation indeed. That there were significant brake marks, however, I accept. Of course this is only to be expected if the account of the matter apparently given to the police by the driver is correct. 15. Following emphasis on the length of the brake mark the plaintiff relies on an opinion expressed by Mr. Oakley who is a motor vehicular technician having the qualification "AMIMI". He told me that by the use of a certain formula employing the length of a brakemark and the co-efficient of cohesion or friction of the relevant road surface he could form an opinion as to the speed at which a vehicle had been travelling before the brakes were applied. He said such an estimate was not definite. "It is only a guide for the police". On the hypothesis that the brake mark was in fact 20 metres in length and that the gradient was 10 degrees he expressed the opinion that the bus would have been travelling at 29 m.p.h. before the collision. On the hypothesis that the brake mark was 20 metres in length and that the gradient was as great as 20 degrees he expressed the view that the bus, and it was the particular bus involved in the accident about which he was speaking, would have been travelling at 21 m.p.h. He was not asked an opinion on the basis of the agreed gradient of 5½degrees. In relation to the co-efficient of adhesion or friction he said that this was quite important. His formula indicated as much. He said that the particular co-efficient of the particular road surface would have to be measured. In default he had used an average figure of 0.6. Whether this be right or wrong for the particular road surface I know not. He went on to explain that the rear-axle configuration of this particular omnibus would have rendered it difficult for such bus, on whatever slope, to exceed a speed of 28 m.p.h. in third gear albeit the accelerator was pushed right down. He added that it might have achieved some slightly greater speed. This was because the transmission gave the gear a less powerful braking effect than on other basis. He said the speed would be reduced if the accelerator was not pressed hard down and, of course, if the brake was "feathered"; meaning that it was pressed from time to time as the vehicle proceeded. 16. Having carefully considered the tentative, opinion expressed by Mr. Oakley I am quite unable to conclude that the account of his speed given by the driver, namely 20 m.p.h., prior to applying the brakes is realistically impugned. 17. The following questions now appear to me to arise on the issue of liability:
18. As to speed I take into account, as I think I must, the nature of the greater part of Hong Kong and Kowloon which is heavily built up with parked or parking cars, buses and lorries at the sides of the roads. There is at nearly all points a multitude of pedestrians. Many will from time to time seek to cross roads at places other than pedestrian crossings. At any time some pedestrian may quite recklessly rush from behind a halted vehicle; particularly a public service vehicle. If a driver is to ensure that he does not injure such a pedestrian he cannot, in my view, drive at a speed greater than 5 m.p.h. In this regard I have found some observations of Lord Justice Buckley and Lord Justice Browne in Moore v. Poyner (1) helpful. Lord Justice Buckley:
19. Mr. Leung for the plaintiff referred me to the well-known case of Kayser v. London Passenger Transport Board (2) but I find that authority unhelpful as it dealt with the duty of an omnibus driver in relation to pedestrians of whose presence on the highway he is at the material time aware. 20. In my opinion a driver of a bus as well as a van or private motor car should leave such clearance as he possibly can between parked vehicles on his near side and his own vehicle and, within the speed limit prevailing, drive at a speed which circumstances reasonably require. Here there was no evidence, as I have mentioned, that pedestrians were currently present on the highway; no suggestion that he failed to give the public light buses less than adequate clearance and there were no special circum-stances putting him on alert as to the potential presence of the deceased. 21. I do not find that at the material time the driver was driving at a speed which denoted lack of care on his part for those persons likely to be affected. But in any event, turning to question (2) I find that the collision did not result from the speed of the omnibus. The account of the matter given by the driver was that the deceased came into his vision when he was only some 10 feet away. As Mr. Mumford, for the defendnats, points out most drivers need at least a second's thinking time and at a speed of 10 m.p.h. the omnibus would have covered 14 feet. So whether the bus was in fact proceeding at 20 m.p.h. or 30 m.p.h. it does not seem to me (2) (1951) All E. R. 231 that it can be said that speed caused or contributed to this unhappy accident. 22. As to the gear ratio, I find that the driver was driving in too high a gear. There were plain warnings on his approach that he should engage a low gear and had the accident occurred as a result of brake failure I would have found him negligent. It was because of the possibility of brake failure that this neighbourhood was regarded by the police as an accident black spot. 23. The last question is "Did the fact that the driver had engaged too high a gear cause the accident in whole or in part". It did not. There is no allegation as to defective or failed brakes and the gear in which the engine was engaged at the material time can be relevant only to speed. It has not being argued that by reason of the gear the driver was any less able to steer out of the way of the deceased when he became aware of his presence on the highway. And as to the matter of speed I have already expressed my view. 24. So I turn for the second and last time to the particulars of negligence alleged against the driver. I find that he did not drive the bus at an excessive speed. Alternatively I find that speed was not a matter which caused the accident in whole or in part. The contention that he failed to keep a proper lookout has not been pressed and, from the driver's own account of the matter, it can in no way be inferred that he was in breach of this obligation to other road users. As to the allegation that he failed to stop, slow down, steer or otherwise control the bus so as to avoid colliding with the deceased the driver's account of the matter appears to me to show that he took every step he could to avoid a collision when faced with the unexpected presence of the deceased. As to the allegation that he drove the bus in such a high gear ratio as to deprive him of proper control of the bus I have no evidence, as I have indicated, suggesting that the gear ratio was relevant otherwise than in relation to speed. And I repeat that the gear in which the engine was engaged did not cause or contribute to the accident. The last allegation is that he failed to sound his horn. Well, it can hardly be suggested here that sounding the horn in the agony of the moment would have helped to avoid the accident. The driver was right to concentrate on avoiding action and braking. In summary I find that the burden of proof resting on the plaintiff is not discharged and it is therefore unnecessary for me to go into the interesting questions as to computation of damages which would arise had I found otherwise.
(1) (1975) Road Traffic Reports 127 (2) (1951) All E. R. 231 Representation: Frankie Leung (W. L. Yuen & Co.) for plaintiff E. C. Mumford (Ngan & Co.) for defendants |