Berta Margarete Irmgard Lawrence v. China Motor Bus Co Ltd and Another

HCA000885/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 885 OF 1980

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Coram: Mr. Commissioner Gittins, Q.C.

Date of Judgment: 27th October, 1980.

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JUDGMENT

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1. The plaintiff who was aged 62 at the time of the accident claims for damages against the 1st defendant company, the owner of a public bus and against the 2nd defendant the driver of the bus as servant or agent of the 1st defendant.

2. The plaintiff's evidence is that on the morning of Saturday 22nd April 1978 she parked her car in the car park below the western end of Kennedy Road adjacent to St Joseph's Church and walked up to Kennedy Road to take a bus westwards to Bonham Road; that she did this every Saturday; that in accordance with her usual practice on reaching Kennedy Road she walked to the right along the pavement on the north side to near the Cotton Tree Drive flyover where she was in a position to see that there was no traffic approaching from the west. During this manoeuvre the plaintiff saw a Route 103 bus enter kennedy Road from Cotton Tree Drive and head towards the bus stop on the south side of Kennedy Road. She saw several persons waiting at the bus stop.

3. She said that she meant to catch that bus but that it was not imperative for her to do so as there are many alternative buses to Bonham Road from that bus stop.

4. Having ascertained that there was no traffic from the west or east she walked quickly at right angle to the pavement to the double white line on Kennedy Road and then without pausing continued half left towards the bus then stationary at the bus stop 20 to 25 feet away, intending to cross the front of the bus to its boarding door near its front.

5. The next thing she remembered was that "there was the enormous bus driving towards me." She flung out her left arm, the bus then being just beyond her palm; the bus made forceful impact on her left palm and she was thrown backwards on her back. The bus then stopped. As a consequence of the fall she sustained a wedge compression fracture of lumbar 3 vertebra with local tenderness over the fractured vertebral level.

6. The plaintiff also said she did not hear the horn of the bus sounded, that she did not notice the indicator light flashing and that she did not look at or make any motion to the bus driver to indicate her intention to board the bus when she walked towards it. She denied that a white car had passed from the east at this time.

7. The 2nd defendant's evidence is that he is an experienced driver with a clean record up to 22nd April 1978 and had driven Route 103 for 3 years. On this occasion he stopped the bus at the Kennedy Road bus stop with the front door opposite the bus stop sign. That 2 or 3 passengers alighted using the door in the middle of the bus and about 2 got on by the front door. That he looked at the left wing mirror to check there were no passengers using the doors and closed them, then looked at the rear mirror inside the bus to check the interior, then he looked at the right wing mirror. He said he then saw a European lady stationary on the double white line, looking at the rear of the bus, he thought that she realised the bus was moving off, he set the right indicator light to flash, and he anticipated she would wait until the bus had gone past her before continuing to cross the road. That on checking the right wing mirror he saw a white coloured car at a distance approaching quite fast from the rear; that he waited for the white car to pass then drove forward. That when the bus started to move he saw the shadow of a person in front of the bus and he braked immediately. The bus had moved 1 to 2 feet. He had merely taken his foot off the brake and had not depressed the accelerator. That when he braked the bus to a stop he saw the European lady sitting on the ground in front of the front corner of the bus. The bus did not make contact with the lady, he thought she had fallen down and he tried to lift her when he got out of the bus. That he understood from her she could not stand and would be comfortable only by lying down, so he fetched a long seat from the bus for her to lie on. He admitted that in the statement he made to the police there was no mention of the white car, but that that statement was made in answer to brief questions by the police officer. That he did mention the white car in proceedings in the magistrate's court when he was found guilty of careless driving. He stated that he was wrongly convicted and did not appeal because he had no money.

8. In cross examination he said that when he saw the plaintiff standing on the double white line she was level with the front of the bus, a little over 10 feet away from him. The bus had automatic drive and as soon as the white car passed he took his foot off the brake and the bus moved forward. That he was watching the white car in the wing mirror and when he looked in front the lady was already immediately in front of the bus. He conjectured that the lady had crossed the road at speed and bumped against the bus. In answer to various questions he said "I was watching the white car", "My attention was on the white car", "My attention was on continuing to drive the bus."

9. Mr. A.M.C. YAU who was then professor of orthopaedic surgery at the University of Hong Kong gave evidence on the plaintiff's injuries. He told the court that the plaintiff did not complain of any injury to her left arm and he found no bruising of it. His opinion was that the plaintiff's X ray showed that her back injury was caused by the body trunk bending forward. His opinion casts some doubt on the plaintiff's version of what happened before she fell. However it is not disputed that her injuries were at least the result of near impact with the bus.

10. On the evidence I find that the plaintiff thought that the bus would remain stationary at the bus stop, that it would be safe for her to walk towards it and cross its front, and that she acted accordingly.

11. I find that the 2nd defendant thought that the plaintiff knew that the bus was about to move off and that she could remain on the double white line until the bus had passed her before continuing to cross the road, and he started the bus on these assumptions.

12. The assumptions of the plaintiff and the 2nd defendant were both wrong and I hold that in acting on these assumptions they were both negligent. I hold that they were jointly to blame for the accident; that the 2nd defendant was negligent and that the plaintiff was contributorily negligent to the extent of 25%.

13. I find that the existence and passage of the white car has not been established but whether or not there was the white car I hold that the 2nd defendant was negligent in the circumstances.

Special Damage

14. The following items are agreed:-

15. In the circumstances I hold that the defendants' objection, albeit niggardly, is well founded, and that the plaintiff is only entitled to damages under this head for 2 weeks, i.e. $140.

16. The total award of special damage is $14,832.

General Damages

17. The plaintiff was in hospital from 22nd April 1978 to 9th May 1978, then for 10 days at a friend's house during which she spent most of her time in bed including having her meals there. She went home on 20th May 1978 where she spent most of the time lying down. When her husband returned she would get up to prepare the meals and then lie down again. She could move about with 2 sticks. Throughout 1978 she could not be up for more than 2 hours without lying down otherwise she would suffer unbearable pain. Prior to her accident she lived a very full social life with her husband Anthony John Lawrence, a free lance journalist and broadcaster, and frequently accompanied him on his trips in East Asia. As a consequence of her accident she had to give up her part-time teaching at the Goethe Institute, driving her car, golf, the activities of the Royal Asiatic Society, and all social activities in 1978. In 1979 she was able to resume some of her activities with considerable restrictions. She still suffers pain which becomes very bad if she stays up too long. She had to use a stick or umbrella for support except when her husband is there to support her.

18. The medical evidence was that the plaintiff would continue to suffer intermittent back pain especially when under stress, e.g. when lifting weights; that it was normal for her not to be able to remain upright for more than 4 hours; that a large percentage of such patients will get over this intermittent pain but with a small percentage it will continue. The tenderness over the spine was likely to continue. The plaintiff's X rays showed that she suffered from degenerative disc disease in the lumbar spine and some indications of asteoporosis; that the plaintiff's injury has aggravated the former but not the latter.

19. I find that the plaintiff has suffered a great loss of amenities as a result of the accident.

20. I award as general damages for pain, suffering and loss of amenities 40,000.

21. The award is as follows:-

22. Having found the plaintiff to be contributorily negligent to the extent of 25%, there will be judgment for the plaintiff in the sums of $11,124 and $30,000 and costs. Interest will be at 5% per annum on $11,124 from the date of the accident to the date of trial and 10% per annum on $30,000 from the date of the service of the writ to the date of trial.

Representation:

Mr. Stone instructed by Deacons for plaintiff

Mr. Francis rancis Eddis instructed by Ngan & Co. for defendants