Tam Wai Chun v. The Kowloon Motor Bus Co and Others

HCA006125/1982

BETWEEN:

Coram: Roberts, C.J.

Date: 13 April 1983

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JUDGMENT

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Preliminary

1. The plaintiff claims damages for personal injuries sustained in an accident which took place at about 8.40 in the evening of the 4th April, 1980.

2. The first defendant (D.1) was owner of the motor bus involved in the collision, the second defendant (D.2) was the driver of the bus and the third defendant (D.3) was the driver of the motorcycle, on which the plaintiff was a pillion passenger.

3. It has been agreed between the parties that there should be an award of $55,000 by way of general damages and special damages of $20,000.

4. No question arises of any contributory negligence on the part of the plaintiff himself, since he was a pillion passenger on the motorcycle ridden by D.3 and there has been no suggestion that he did anything which contributed to the accident itself or that he was other than an innocent victim.

Facts

5. The accident occurred about 8.40 p.m. on the 4th April, 1980, on the Kwai Chung Road which is at that point a four-lane highway, not far from a bus bay which contains a lamp post No. U1840. This bus bay is an extension of the inner lane of the south bound carriage way of the Kwai Chung Road. There was at the time of the accident one bus sign on the pavement in the middle of that bay. On the evening, in question, the road was well-lit, the weather was good, the road surface was dry and the traffic was light.

6. It was not in dispute that the injuries sustained by the plaintiff arose out of a collison between a bus, driven by D.2 and owned by D.1 and a motorcycle ridden by D.3.

7. The point of collision between the motorcycle and the bus is a matter of some doubt, but I do not think that its exact location is of importance. It probably occurred in the inner, i.e. first, lane of the road, facing south, somewhere about where the bus bay starts. This is confirmed by the evidence of D.2 that he was turning into the bus bay to pick up passengers when he heard a bang which was the noise made by the collision between the bus and the motorcycle.

How did the accident occur?

8. The p1aintiff himself noticed very little of what happened. I find this quite understandable as he was merely the pillion passenger. On 15th April, 1980, he made a statement to the police, which was produced in evidence as P.5; in it, he described how his friend, D.3, was driving from north to south along the Kwai Chung Road, when he felt a bus pressing on him from his right hand side. The motorcycle veered to its left and overturned, throwing him to the ground. He did not know how the accident happened and he had not seen the bus before it began to press against him.

9. He said in evidence to-day that he did not notice if the motorcycle was trying to overtake the bus on the inside lane because he hadn't been looking ahead. He therefore is not a great deal of help to me in deciding what the real cause of the collision was.

10. D.2, the bus driver, pleaded guilty to careless driving on the 5th September, 1980, and was fined $400.

11. The summary of facts which was put before the court in that case, and to which D.2 must be presumed to have agreed when they were put to him, was to the effect that he was driving a K.M.B. bus in the second lane of the southbound carriage way on the evening in question, and that when he had approached the bus stop he pulled into the first lane, with a view to stopping the bus at the bus stop to pick up passengers. When he did so, he failed to ensure that the traffic in the first lane, across which he was steering the bus, was clear and, in consequence, the nearside front of his bus collided with the motorcycle being ridden by D.3.

12. D.2 made a statement to the police on the evening of the accident, in which he said that he had been driving the bus from north to south along the Kwai Chung Road in the first lane and that, when he was about 25 feet from the bus bay, he saw two passengers waving their hands. He then slowed the bus and turned to his left into the bus bay, and heard a bang. He had not seen the motorcycle before he turned to the left and did not know where it had come from.

13. In evidence, D.2 said that he had started to pull over from the second lane into the first 1ane about 100 yards from the bus stop and that the bus was straddling the white lines between the first and second lanes when he saw passengers waiting at the bus bay. He put out his indicators at that point, well before he took a decision to turn into the bus bay, to warn people who were waiting there that he was prepared to do so, if necessary. He kept his indicator on as he turned towards the bus stop.

14. As he approached the bus stop, he was travelling at about 22-23 m.p.h. which he reduced to about 20 m.p.h. by the time he started to turn into the bus bay. When he was about 25 feet from the bus bay, he saw passengers there putting up their hands, looked into his left rear mirror once and, seeing nothing, swerved the bus to his left.

15. As counsel rightly commented, if the bus was travelling at 20 m.p.h. D.2 would have had to brake extremely hard and swerve violently to his left in order to get into the bus bay, if the bus was as close as 25 feet to the bay when he saw the passengers wave. When this was put to him, he agreed that 25 feet was no more than an estimate and that he must have been further away from the bus bay when he saw the prospective passengers signal to him. He agreed that he did not see any traffic on his right, because his concentration was directed towards the bus stop.

16. He said in evidence that the instruction, given to drivers by the bus company, was that a bus driver should look at any bus stop at which his bus was supposed to stop, see whether there were passengers to pick up, pull into the bus stop and pick them up if there were any, but otherwise should continue on without stopping, unless passengers wished to dismount from the bus.

First and second defendants

17. I have come to the conclusion that D. 2's attention was directed to the bus stop rather than to his inside rear mirror. A bus driver is faced with a formidable task and deserves much sympathy. He is obliged both to drive a huge and unwieldy vehicle with great skill on crowded roads and to take note of whether or not people wish to board his bus at the next stop. On this occasion, I think that passengers in the bus bay put up their hands at a late stage and that, when he saw that, he failed to look into his rear mirror or, if he did look, he did so in such a cursory and careless manner that he failed to notice the motorcycle ridden by D.3, which I find was close to the bus on its nearside as D.2 began to turn the bus to the left.

18. I also find that the bus was still effectively in there second lane of the road when D.2 saw the signal from the passengers and began to turn to his left, not straddled across the two lanes as he said in evidence, which was not a version that appears in either his earlier statement to the police or in the summary of facts to which he agreed when he pleaded guilty to careless driving.

19. Thus, I fine. that D.2 was at fault and, consequently, that D.1, as his employer, is vicariously liable to the same degree.

Third defendant

20. There remains the question of whether or not D.3 contributed to this accident.

21. His evidence was that the bus, in the second lane, overtook him as he was riding in a southerly direction at a speed which had been more than 30 m.p.h. but which he had reduced to 30 m.p.h. about two lamp posts before the beginning of the bus bay.

22. D.3 asserts that, although the bus must have overtaken him on his right-hand side and then swerved across in front of him, he did not observe it at all, prior to the moment of impact, and that he had no time to take evasive or other action.

23. This version depends upon an unlikely lack of observation by D.3 and assumes that D.2 drove the bus past a motorcycle and, almost immediately after passing it. swerved recklessly into the path of a vehicle which he must have seen and known he had just passed. This is a version which I cannot accept.

24. I have to warn myself, however, of the danger of attributing a degree of blame for the accident to D.3, merely because I was unable to accept the version of events which he gave in the witness box.

25. If I accept the evidence as to speed given by D.2 and D.3, the motorcycle was travelling faster than the bus and thus would sooner or later have overtaken it. This is inherently more likely than  that a bus, with a maximum speed of less than 35 m.p.h. should have overtaken a powerful motorcycle.

26. I do not suggest that the motorcycle was being driven at an unreasonable speed. There is nothing to support such a suggestion. What I do find is that it was travelling faster then the bus and that, while the bus was in the second lane, the motorcycle came alongside it and was approximately abreast of it when D.2, having failed to ensure that the first lane was clear before he did so, swerved across that lane intending to enter the bus bay.

27. I do not think that it matters as to whither or not D.3 saw the bus' indicators before the collision. Even if he did, he was entitled to assume that the bus would not change its the first lane until this was clear.

28. Although rejecting D. 3's version of events. I have come to the conclusion that he was not riding his motorcycle in a manner which contributed to the unfortunate collision which occurred. In the result, therefore, I find D.1 and D.2 wholly liable for the accident and attribute no liability to D.3.

Summary

29. Inward the following against the first and second defendants -

Representation:

D. Mackenzie-Ross (Jenkins & Au) for Plaintiff

P. Dinan (Munro & Co.) for 1st & 2nd Defendant

E.C. Mumford (Stevenson & Co.) for 3rd Defendant.