Mak Leung Yau v. China Motor Bus Co Ltd and Another

HCA000277/1980

Quantum of damages.

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Coram: Liu, J. in Court

Date of Judgment: 22nd July 1981

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JUDGMENT

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1. On 11th May, 1979, at the junction of Shaukiwan Road and Hoi Lee Street, a China Motor Bus registration No. BG2296 pulled up to a bus-stop outside a branch of Overseas Trust Bank. The plaintiff, then 66, was a passenger. It was shortly before seven in the morning.

2. According to the plaintiff, about ten passengers alighted of whom he was the last. When he was on the last step of the exit door in the mid section of the bus with one foot about to step onto the roadway, the bus allegedly drove off without warning. His head and right shoulder fell against the kerb, and he was subsequently lying by its side. From the accident, the plaintiff sustained a hip joint fracture. More precisely, it was a fracture of the neck of the right femur. Eventually the plaintiff was taken by ambulance to the Tang Shiu Kin Hospital, and from there he was transferred to the Tung Wah Hospital. He was found to be suffering from tuberculosis as a result of silicosis, a sympton caused by inhaling stone dust. For fear of possible complications, the plaintiff had to be operated upon in Queen Mary Hospital. That was on the 14th June 1979. After his operation, he convalesced in Sandy Bay Convalescence Home. The plaintiff spent some 46 days in hospital. He attended as an outpatient at the Sai Ying Pun Jockey Club Clinic for a time. He used two crutches for 3 months, and thereafter he has been and still is using one crutch today.

3. He was said to have suffered 16% impairment of his right leg and 6% impairment of the Whole Man. His right leg is half an inch shorter than his left. His fracture has recovered well otherwise, but the plaintiff limps. He experiences pain 4/5 times a day in his right hip and right knee. He could only walk half an hour without much discomfort but with the aid of his crutch. He cannot squat. He was a stone-cutter before the accident. Despite his TB and silicosis, the most favourable view taken of the texts of his medical reports would have allowed the plaintiff to continue to work as a stone-cutter for a year and a half had he not met with the accident and, thereafter as an uninjured man, to do less strenuous work as a watchman, caretaker and the like for an unspecified period.

4. The plaintiff also described the distance of his position lying by the kerb from the bus. He testified initially that his head was 4 feet from the bus and his soles were a foot from it. Later, he said that the bus had moved the distance between its middle exit door to the rear plus another foot. In cross-examination, the plaintiff confirmed the accuracy of his statement, a copy of which was marked Exhibit D3(1), that the bus moved five feet. In re-examination, he corrected himself by agreeing to the proposition that the bus had not moved five feet but had only moved a distance which finally left a gap between himself and the rear of the bus of about 5 feet. I do not attach importance to the inaccurate recollection of the precise distances by the plaintiff just as I do not place any reliance on Mr. Chu's confused description of the position of the bus after it had stopped. Mr. Chu was once interpreted as having said that the bus overtook the two stationary mini-buses and stopped five feet beyond the stop, but almost immediately he corrected himself in the same cross-examination that only the front of the bus went five feet beyond the stop.

5. It is just as convenient a time here to dispose of one small matter : three separate statements in the Chinese language were taken by a policeman from the driver, Mr. Chu a co-passenger and the plaintiff. These statements were permitted to be produced as documents hand-written by the constable. An objection was raised on behalf of the plaintiff, but insofar as they were real evidence, obviously they could not be challenged. Mr. Eddis counsel for the defendants, sought to have them introduced as documents written by the constable, and it must at that stage be assumed that counsel considered the production to be both purposeful and eventually productive. The question of relevancy was not expressly raised or relied upon. In any case, objection was not made with the usual promptitude for the first document so taken by the constable allegedly from the driver. Mr. Eddies thereafter indicated that he would in due course seek to apply for the contents of the documents to be accepted as evidence of facts under s.47(2)(a) of the Evidence Ordinance. Similar objection was made to D.2 and D.3 only to be again overruled. The question of relevancy was again not expressly raised or relied upon. In the end, only the statement taken from the plaintiff was affirmed as to its truth and used with an agreed translation. Nothing turned on the other two documents taken down by the constable, the contents of which had never been made evidence of any fact.

6. Coming back to the evidence of the plaintiff, he said that he was the last of ten passengers to leave the bus. He claimed that the bus moved when he was just about to step off. He further alleged that two policemen were then present at the scene and shouted to the driver to alight.

7. Both parties agreed that the crux of the matter lay in whether the bus had moved after it had stopped.

8. The driver told the court that he stopped, opened one door and the other, the exit and the entrance doors of the bus for discharging passengers and allowing five or six passengers to board. He told the court that after the five or six passengers had boarded, it was for the first time that he noticed an elderly man in dark clothes through his left rear view mirror. The man was on the road in a slightly diagonal position just outside the middle exit door. As to the position of the bus when it was brought in, the driver was at times vague, but I accept his evidence generally that he overtook 2/3 mini-buses and eventually stopped with its middle exit door slightly ahead of the bus-stop. The driver, the 2nd defendant had earlier told the court that the bus should normally be manoeuvered into a stop with its front entrance door parallel with it so as to enable passengers to board. The driver was adamant that the bus never moved with both doors still opened and that there were no policemen when he alighted from the driver's cab to attend to the plaintiff.

9. The 2nd defendant further described how he sought assistance from passengers hopefully to confirm that his bus had not moved and that the plaintiff had only himself to blame. The 2nd defendant was not wholly unsuccessful in his attempt to locate witnesses. Mr. Chu was public-spirited enough to leave his name and address. Mr. Chu, an independent witness, testified that he was standing very near to the middle exit door leaning against the stairway to the upper deck. He was standing sideway in a bus which was packed to its capacity. He told the court that he could observe passengers alighting after the bus had come to a halt. He gave evidence that the bus never moved and that when the plaintiff fell off, there were four passengers still to alight. He maintained that there was no policeman at the scene. He carried his evidence well and remained unshaken in cross-examination.

10. From every aspect, Mr. Chu's evidence seemed to receive some corrobaration. According to Mr. Chu, four out of the ten people were still to alight meaning some 5/6 people had alighted. That coincided with the number of people that had gone on the bus i.e. five or six, but it was by no means conclusive. The exit door and the entrance door were both open. In that state, it was unlikely for the 2nd defendant to drive off. Both the driver and the independent witness, Mr. Chu, testified as to the position of the plaintiff, that is outside the middle exit door. That was again corroboration that the bus had not moved.

11. I have had opportunities of observing the demeanour of Mr. Chu as well as that of the driver, the 2nd defendant. Not only was Mr. Chu's evidence unembellished, he had shown himself to be impartial. He conceded that he was unsure if the plaintiff's fall was brought about by his own carelessness or his jostle with the other passengers.

12. I find that the bus had not moved after it had pulled into that stop at the junction and that the plaintiff was not the last of the passengers to alight. There were some four passengers behind him. Evidently the plaintiff's allegation that he was the last of the alighting passengers was not made in all innocence. It was an attempt to boost a claim which never existed. The plaintiff's further allegation that policemen at the scene shouted to the 2nd defendant driver to alight, seemed to have been made with the same motive. I do not accept that there were policemen at the scene. On the crucial issue as to whether or not the bus had moved after it had come to a stop at the junction I find for the defendants. The plaintiff's claims must therefore be dismissed with costs in favour of the defendants.

13. I should, ex abundante cautela, make findings on the question of quantum. I accept that the plaintiff could have worked a year and a half had he not met with the accident. I also accept the evidence of the plaintiff's employer as to his performance and rates of payment, i.e. a $100 per day in 1978, $140 per day after the end of 1978, $150 per day around the end of 1979 and $160 per day at the beginning of June 1980. I accept as well that the plaintiff worked about 22 days in a month. I would, if I were to find in favour of the plaintiff, allow him all the agreed special damages in the sums of $920, $230 and $95 plus loss of earnings for a year and a half at the respective rates indicated. After a year and a half, I accept, the plaintiff would have been able to work in a less vigorous employment earning, by way of pure speculation, a much reduced wage of, say, $500 a month. I would also allow, for loss of future earnings, a multiplier of a year at the rate of $500 per month. The one year multiplier is much influenced by the plaintiff's condition as a man suffering from TB caused by silicosis. As for damages for pain and suffering and loss of amenities, I would not be prepared to award more than $20,000 by reason of his reduced activity in extent and scope as a result of his affliction. Interest would be awarded on the proper items at the rates of 6 and 12% per annum respectively.

Representation:

Mr. M. Bunting instructed by Rowdget W. Young & Co. assigned by Legal Aid Department for Plaintiff.

Mr. Francis Eddis instructed by Ngan & Co. for Defendants.