Wong Wai Wan v. Lok Shek Shing and Others

HCA000490/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 490 OF 1970

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CORAM: Briggs J. in Court

Date of Judgment: 12th February, 1971.

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JUDGMENT

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1. In this action the Plaintiff, is a married woman aged about 45 years. She claims damages for injuries received as a result of a traffic accident in Belcher's Street, West Point, Hong Kong on the morning of June 11th, 1968.

2. At the relevant time, the first and second defendants were the driver and conductor of a double decker omnibus No. AC 4744, which is the property of the third defendant. The second defendant was the conductor on the lower deck of the bus.

3. The Plaintiff's case is that when she was boarding the bus at a bus stop in Belcher's Street her left foot was caught in the door of the bus and the bus moved on with her in that position so that she was dragged by the bus for some distance and then fell from the bus on to the road. She alleges that this was due to the negligence of the crew of the bus, namely the first and second defendants. She also alleges that they were in breach of a statutory duty towards passengers entering the bus.

4. The defence is that any injury suffered by the Plaintiff was due to her own negligence.

5. The Plaintiff gave evidence on her own behalf. She is a woman of but little education and was employed as a housewife. At the time of the accident she also assisted her husband. He is a hawker selling plastic flowers and other goods.

6. She said that on the day in question she was taking her son to school. He was then aged about six. She said that at the bus stop in Belcher's Street her son got on to the bus, which was then stationary. She herself placed one foot on the bus when the doors, which are folding doors, closed. As a result, her leg was trapped in the door. The bus moved off and she fell into the street and was rendered unconscious. She remained unconscious for 4 or 5 days.

7. That was her story in her examination in chief. It is also on these facts that the endorsement of the writ in the action and the Statement of Claim are based.

8. However she told a different story when she was cross-examined. She then gave two different versions of what occurred.

9. She repeated what she had said in her examination in chief: but added further details. She said she had her son's hand in hers and held his school bag in her other hand. She said that the bus was moving when she got on to it but almost immediately afterwards she said that it was stationary. She said she put her son on the bus: that her left foot was on the first step when the doors closed on it the bus moved off and she was dragged for three shop widths in the street.

10. She gave a different version later. She said she did not put her son on to the bus she held him back as her left foot was caught in the doors. However on at least two further occasions she said that the son had got on to the bus. She also said that as soon as her foot was caught the door was re-opened and it was released. But in her re-examination she admitted that she did not know whether the door was re-opened or not.

11. One of the exhibits was a copy of a letter written by the Plaintiff's solicitors to the first defendant, the driver of the bus. This gives a version of the happening which is different again. It is there stated that after the boy had been put on to the bus, the doors of the bus closed on the body of the Plaintiff. Then the doors suddenly opened and this caused her to fall out knocking her head on the ground.

12. The second defendant was prosecuted for an offence under regulation 11 (d) of the Road Traffic (Public Omnibus and Public Cars) Regulations and the Plaintiff gave evidence in those proceedings. She then said her foot was caught in the door and she was dragged for two shop spaces by the bus after which her foot freed itself. She said that this rendered her semiconscious. She also said that her son was already inside the bus. It was on this evidence that the magistrate convicted the second defendant of negligence and fined him $100.

13. In the present proceedings it became abundantly clear that the Plaintiff was relying on what she had been told about the accident and not what occurred in fact. When cornered by the questions of Counsel, she admitted this several times. It will become clear later in this judgment that the accident could not have occurred in any of the ways she described.

14. Both the first and the second defendants gave evidence. And I will say at once that I found them to be frank and convincing witnesses. And that I accept their evidence totally.

15. The driver said that the bus was empty when it arrived at the bus stop in Belcher's Street. He stopped with the front double door of the bus facing opposite to the sign indicating that there is a bus stop there. Photographs were exhibited which show that at that point the passenger railings have a gap to enable intending passengers to leave the pavement and step on to the bus directly through the entrance.

16. The front door of the bus is composed of four panels, two on each side. They are folding doors. When they are closed the soft rubber strips on each side meet in the middle.

17. The front door of the bus is operated by the driver. By his side is a panel on which inter alia there are two switches controlling the front door. The driver operates a switch and the door automatically opens. When this occurs a red light appears on the panel. This shows red until the door is closed which is done by operating a second switch.

18. Mr. Willis an expert witness called by the Plaintiff said that the light would show red unless the doors were completely shut: i.e. when the two sides come together flush with one another. If the doors were to be closed while there was an object in between such as, for example, a person's foot, then the light would be still show red. The doors must lie flush the one with the other before the light would go out.

19. The driver said that he had a clear view of passengers entering the bus by the front door for there is a mirror mounted on the outside of the bus for this purpose.

20. The drill is that the conductor presses a bell to indicate that all the passengers intending to travel have boarded the bus. The driver looks in his mirror to check that that is so: and then the driver presses his door switch and the door is closed.

21. The first defendant told the Court that this procedure was faithfully carried out on the occasion in question. He looked in the mirror, saw that all the passengers had boarded the bus, waited for the conductor's bell and closed the door.

22. He then looked in his right hand mirror to check that no traffic was coming and started the bus in bottom gear. He swerved out to get into the middle of the road and drove for about 10 yards. He then heard the conductor's bell which is a signal to stop. He stopped and alighted from the bus.

23. He at once saw a woman, who was of course the Plaintiff, lying on the road quite near to the bus stop. She had an injured leg. He also saw a little boy jumping up and down excitedly. The Plaintiff was not unconscious though he and she could not make each other understand because of language difficulties. The Plaintiff was not two shop fronts away from the bus stop.

24. The driver was emphatic that he never operated the switch to open the front door of the bus after he had started the bus. Nor did he see the Plaintiff or any woman with a child near the bus door when the passengers were embarking.

25. The second defendant also gave evidence and he was as credible a witness as the first defendant. He said he was standing near the open bus door when the passengers entered. There were only about 10 of them none being a child. When they were all inside the bus, he rang the bell twice in order to let the driver know that it was time to close the door.

26. There was nobody attempting to board the bus at the time. No one was jammed in the door. And the door did not catch any person's foot. If it had he must have seen it.

27. The bus started he said, and travelled a very short distance. He heard someone cry out to stop the bus, so he gave the signal to the driver to stop which the driver did. He left the bus by the rear entrance which he can operate from inside and saw the Plaintiff and the child. The Plaintiff was in the road quite close to the bus stop. The Plaintiff was not unconscious. The witness said he was certain that no child boarded the bus or tried to do so.

28. He denied that he had seen the leg of the Plaintiff trapped by the door and so had rung the bell to get the driver to stop while the bus was moving.

29. I also had the benefit of hearing the evidence of Mr. Willis who may be described as an expert witness. From his evidence it is clear that the accident could not have occurred in the manner as deposed to by the Plaintiff.

30. The only injury suffered by the Plaintiff was to her left shin. This was badly scraped and skinned. She had to remain in hospital for over a month and have skin grafts. At present the leg is still unsightly but the graft has taken well.

31. Mr. Willis said that if the leg of the Plaintiff had been caught in the door it would not have produced such an injury. Each edge of the two doors when they meet is covered with soft insulating rubber. This is clearly shown in the photographs of the bus which were exhibited.

32. But there is another matter. There were no injuries to the head or upper body of the Plaintiff at all. This appears clearly from the medical evidence. If she had been dragged for the length of two shop fronts she would have at least suffered some scraping and bruising to the upper part of her body and might indeed have been very seriously injured particularly in the hands. There were no signs of this. Believing as I do the evidence of the two defendants and taking into consideration the evidence of Mr. Willis the conclusion is obvious. The Plaintiff was not caught in the door nor was she dragged in the street by the bus. The only evidence that that occurred comes from herself and in the witness box she admitted that she gave this evidence because she had been told that that is what had happened by some Kai Fong members. She herself did not know what had occurred.

33. The Plaintiff could not have had her foot caught in the door and at the same time have taken her son off the bus as she said at one time because to take off the son means that the doors must be open and if the doors were open her foot would have been free. But I do not believe that the Plaintiff put her son on the bus. He was found immediately after the accident with the Plaintiff in the road. Again I believe the conductor when he said that no child entered the bus at that time and place.

34. Finally I do not believe that the Plaintiff was rendered unconscious and remained so for 4 days. The report of her admittance into hospital has been exhibited and it makes no mention of this. And I believe the two defendants when they said they spoke to her and she answered immediately after the accident.

35. That she was injured in doubtless true. But she was not injured in the way she says she was. Central to her case and always reiterated is the allegation that she caught at least part of her body in the door and that she was dragged along the Street by the moving bus. I reject this version of the accident entirely. I find as a fact that the Plaintiff never was on the step of the bus, nor was her son. I do not believe she was caught in the door and I find as a fact that she was not dragged along the street. I accept the evidence of the two defendants totally.

36. It is possible that the Plaintiff with her son was hurrying to catch the bus and that she was grazed by it as it moved away from the bus stop. She must have been between the bus and the railings or the pillar which is shown in the photographs very near to the railings of the bus stop. She must have been on the road where she was found not on the pavement. However this is pure speculation. The version of the Plaintiff of the accident is obviously wrong and she cannot succeed. She herself says that she has given as evidence not what she herself knows about first hand but what others have told her happened. I can find no evidence whatsoever that the accident was due to any negligence of the first, second or third defendant.

37. As I have said the second defendant was convicted of negligence in respect of this accident. Unfortunately the Magistrate did not have the advantage of the evidence of Mr. Willis and he was not told that the only injury to the Plaintiff was to her left shin. Nor was he told that the evidence given on oath before him by the Plaintiff was not the truth as she knew it but was something which she had been told.

38. I am certain that if the Magistrate had been so informed he would not have recorded a conviction in that case. It has been proved to my satisfaction that the second defendant was not guilty of that offence. It is a great pity that a conviction was recorded for the second defendant bears an exemplary character. I am pleased to be able to record that his Company have continued to employ him up till now.

39. There must therefore be judgment for the defendants. In case this matter goes further I will deal with the question of damages.

40. The Plaintiff claims various sums as special damages. I have no hesitation in saying that these sums have been exaggerated. She claims loss of earnings at the rate of $250 per month for 22 months. She said that she assisted her husband who is a hawker. Her husband gave evidence and said his wife helped him before the accident. He did not say how much this help was worth. But it could not be much. There are five children in the family and the Plaintiff admitted that she had to run the home and look after them.

41. The reason the Plaintiff is claiming a total of 22 months is that she says that the accident has rendered her unfit to do the work that she used to do before the accident, she can no longer walk around the streets offering wares for sale. The Plaintiff is suffering from arthritis in her left knee. And when she gave evidence she had to be helped to the witness box.

42. The medical evidence was quite emphatic that this is not a result of the injury she received. That injury was not an injury to the knee or to any joint.

43. She told the doctor who examined her on behalf of the defendants two days before the trial that this arthritic condition had been present for some four years, namely before the injury of June 1968. There is no evidence that the injury has accelerated the arthritis.

44. The Plaintiff in her evidence denied that she had told the doctor that she had suffered from arthritis long before the injury. I do not accept her evidence on this point. The doctor had no reason to lie to the Court and I accept what he said.

45. The Plaintiff was hospitalised for forty days and had to attend as an out-patient for a considerable period afterwards. She obviously was not fit for work for some time. I think it would be fair to take a period of six months from the date of the injury. But I think that the sum of $70 per month is the correct sum. This comes to $420.

46. She claims $150 as travelling expenses and $60 as damage to her clothing. I would allow both of these sums.

47. She also claims $3,000 for extra nourishment. I cannot allow this. She was at the beginning in the hands of doctors who would prescribe any extra nourishment required. And the evidence as to how the amount was arrived at is not only unsupported by any receipts, it was no more than a wild guess.

48. This makes a total of $630 as special damages.

49. The Plaintiff must have suffered considerable pain in her leg. The whole front of the left leg was scraped from just under the knee to the ankle. There was also a minor fracture of the fibula. There were skin grafts which have taken well. No sign of the fractured fibula remains. And according to the medical evidence apart from most unsightly scarring there are no permanent ill effects from the injury.

50. Taking everything into consideration I would award $10,000 as general damages. The total sum therefore had I found the defendants liable and there being no contributory negligence comes to $10,630.

51. As it is, there will be judgment for the defendants with costs. The Plaintiff's costs are to be taxed in accordance with the Legal Aid Regulations.

Representation:

H.C. Mui (Wilkinson & Grist) for Plaintiff

Wright (Ngan & Wong) for all Defendants