Sum Shu Lam v. Poon Pak Shing and Another

HCPI000089/1997

HCPI 89/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 89 OF 1997

Coram : Deputy Judge McMahon in Court

Dates of Hearing : 5 - 8 Oct & 12 Oct 1999.

Date of handing down Judgment : 11 November 1999

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J U D G M E N T

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The Accident

1. This action arises out of an accident to the Plaintiff, a 52 years old man, whilst a passenger on a bus owned by the 2nd Defendant and driven by the 1st Defendant.

2. It is common ground that on the afternoon of 21st October 1995 the Plaintiff boarded the 2nd Defendant's double-decker bus at a bus stop on Kings Road in the vicinity of the Golden Hung Kai Theatre. The Plaintiff then proceeded to climb the staircase of the bus in an attempt to go to the upper deck of the bus.

3. Whilst on the staircase and whilst the bus was in motion the Plaintiff fell back to the lower deck of the bus.

4. The reasons for the Plaintiff's fall were in issue as were the nature and extent of injuries he claims to have suffered as a result of that fall.

The Plaintiffs case

5. The Plaintiff claims against the Defendants in negligence, inter alia particularising the 1st Defendants starting off before the Plaintiff was seated, driving too fast and braking too abruptly in the circumstances, and for breach of the statutory duty contained in regulation 45(1)(d) of the Road Traffic (Public Service Vehicles) Regulations to Cap 374. That Regulation states

"45(1). The driver of a public bus.... When acting as such ――

......

(d) shall take all reasonable precautions to ensure the safety of passengers in or on .... The vehicle...."

6. The Planitiff claims to have sustained injuries to his back as a result of his fall involving the fracture of the L2 - L4 vertebrae. That he had such fractures to the right transverse processes of the L2 - L4 lumber vertebrae was not challenged.

7. He claims however also that as a result of falling down the staircase of the bus he sustained a further injury to his head which resulted in difficulties in walking, talking and coordination of movement.

8. The Plaintiff's case in that regard as adduced by him in evidence was that as a result of the fall down the bus staircase he had sustained some form of injury, and in this regard his evidence was not specific, which resulted in an interrupted or partially obstructed cerebral-spinal fluid flow which in turn resulted in the occurrence of a form of hydrocephalus, called communicating or normal pressure hydrocephalus, which, some months after the fall down the bus staircase, had caused such damage to the Plaintiff's brain, particularly his cerebellum and corpus callosum regions as to result in his difficulties of physical coordination evidenced by his slurred speech and awkward gait.

9. An unusual aspect of the evidence which was also in the main common ground was that in about 1972 whilst the Plaintiff was a student of Engineering at Hawaii University he had suffered head injuries as the result of a motor vehicle collision.

10. Those head injuries on that occasion had resulted in the Plaintiff being in a coma for a number of weeks and then undergoing many months of further treatment initially in Hawaii and some years of further treatment subsequently here in H.K.

11. His injuries on that occasion also resulted in difficulties in talking and walking, though in this trial it was in issue as to whether those difficulties were the same or similar in causation as his present difficulties in that regard.

12. The Plaintiff in his case claimed to have made a complete recovery from those injuries by the time of this fall from the staircase of the 2nd Defendant's bus.

Liability

The Plaintiffs case

13. The Plaintiff, in his evidence, said that when he boarded the bus there were only a few spare seats in the lower deck and that they were towards the rear of the bus near the engine.

14. That was not to his liking because the engine made buses too hot in that area and so he commenced walking up the staircase in an attempt to get to the upper deck.

15. When he was at the top of the staircase, as he was changing his hands position from one handrail to another, the bus gave a jerk which he attributed to it braking and "a great force" pulled him down the staircase.

16. He said he had not been carrying anything in his hands at the time he climbed the staircase and that his fall was caused simply by the force of the bus braking.

17. He described in cross-examination his progress up the staircase of the bus.

18. According to him he followed about 4 people up the staircase and gripped a handrail on both sides of the staircase with each hand. He climbed the staircase by putting both feet on each step before proceeding up to the next step.

19. He said the bus started as he commenced his climb up the staircase and he continued up to the second step from the top (marked with an "X" in Defence Ex 1 photo 15). He had both feet on that step.

20. There he decided to change his handgrip.

21. He described this in evidence as holding onto the handrail of the back of the seat at the top of the stairs with his left hand while he released his right handgrip and moved his right hand over to the left handrail of the staircase.

22. He said as he released both handgrips to perform this momentary manoeuvre the bus braked and he fell.

23. He said he had been inclining or leaning forward at this time but the "large force" pulled him down.

The Defendants case

24. The 1st Defendant gave evidence of what he had done after the passengers, including the Plaintiff, had boarded his bus at the bus-stop.

25. He said that the bus he drove was some 16 years old. It had an automatic gearbox. He had originally pulled half way into the bus-stop where the passengers had boarded the bus and so was still half way out into the single traffic lane along which he had been proceeding. In other words the bus had stopped parallel to the traffic lane in which it had been travelling, but half its width still protruded onto that traffic lane.

26. He said he pulled away from the bus-stop after checking the interior of the bus. He saw nothing unusual at the time of this check and assumed the Plaintiff was on the staircase.

27. He said he pulled away smoothly. There was no jerking of the bus. There were traffic lights ahead which were red and so he did not accelerate at any great speed and did not brake. Instead he simply stopped accelerating and intended to allow the bus to run up to the lights hoping they would change without him having to come to a stop.

28. He heard a noise and was told someone had fallen and so stopped the bus. It pulled up over a bus length from the traffic lights and he then went to give aid to the Plaintiff and called a traffic policeman to the scene.

29. He said he noticed some plastic bags next to the Plaintiff who lay on the bottom deck of the bus in the vicinity of the staircase.

30. He explained his witness statement contents to the effect that the Plaintiff had been holding plastic bags and a handbag in both hands by saying that when he had seen the Plaintiff lying on the floor the bags had been next to his hands.

31. He said he estimated the speed he had been travelling at when the Plaintiff fell down the staircase as being 15 - 20 kph.

32. He explained his witness statements estimate of his speed as being 10 - 15 kph as being a guess.

33. He said his automatic transmission was still in 1st gear at the time of the Plaintiffs fall. At 20 kph it would be in second gear.

34. Mr AU Ka-lok was the second witness called for the Defendants. He was a passenger on the bus when the Plaintiff boarded it. He was sitting towards the rear of the bus. He said he noticed the Plaintiff board the bus last and that he, the Plaintiff, was carrying plastic bags when he saw the Plaintiff commence to go up the staircase of the bus. He initially said he thought the Plaintiff was also carrying a handbag but later said he was not sure of this.

35. He said he estimated the Plaintiff was at about the third step of the staircase after the bus had left the bus-stop and when the Plaintiff fell down. He noticed again, after the Plaintiff had fallen back onto the lower deck, the plastic bags which were where the Plaintiff had fallen.

36. He said from the point of time when the bus left the bus-stop to the point of time when the Plaintiff fell down the stairs the bus had not jerked or braked. He described its speed before the Plaintiff fell as being "not very fast. Normal speed".

37. He agreed that buses sometimes jerk in the normal course of events and that he would not pay particular attention to such a jerk as it happened so often. But he did not agree that it was possible that the bus braked and he did not notice.

38. He said that there was no unusual force he had detected from the buses movements at this time.

Assessment of the Evidence and Findings of Fact

39. The Plaintiff's evidence as to how he proceeded up the staircase of the bus was a description of a very cautious man who ensured both feet were planted firmly on the same step before progressing to the next step. His evidence as to how he was in the midst of changing his grip and had both hands off all handrails just as the bus jerked or braked was both difficult to understand and somewhat in contradiction of the extremely cautious attitude he said he had adopted on the way up the staircase.

40. In his evidence he described attempting to grip the handrail at the back of the seat at the top of the staircase with his left hand whilst bringing his right hand from the right side staircase rail to a rail at the left side of the staircase. On the face of it this was an awkward and, from a view of the position of the rails in Ex D1 photo 15, an unnecessary manoeuvre to perform for a person who had both hands unencumbered as the Plaintiff said he did.

41. In short the Plaintiff's evidence of his position and movements immediately prior to the fall was unconvincing. According to him it was sheer coincidence that he momentarily had both hands off the railing in and around the top of the staircase when the bus jerked or braked.

42. He said at that time a great force pulled him down the staircase. But if he were in fact at the top of the staircase and the bus braked as he said then common sense would dictate that he go forward relative to the bus. It is difficult, on his evidence to understand how a braking effect would result in a great force pulling him back down the curved forward facing staircase of the bus.

43. Considering the whole of the evidence in the case I have considerable doubt as to the reliability of the Defendant's evidence.

44. I have taken into account in this regard the undoubted condition of hydrocephalus he suffers from and his difficulties in communication in the witness box and the fact that his memory as to the details of his position may have suffered both as a result of the confusion and pain he suffered at the time and also as a result perhaps of his present condition.

45. Nevertheless he was, as I say, unconvincing in his evidence as to how he came to fall down the bus staircase.

46. By way of contrast both the 1st Defendant and Mr AU struck me as credible and reliable witnesses whose evidence had the ring of truth.

47. Mr AU in particular had no apparent motive to exaggerate or distort his evidence or any part of it and indeed presented as a direct and straightforward individual who gave his evidence in an intelligible and matter of fact way.

48. On occasion he was challenged on apparent inconsistencies in his witness statement. Those inconsistencies were in the main explicable as the result of the lapse of time between events, as in the case of his uncertainty as to whether the Plaintiff was carrying a handbag in addition to the plastic bags or as a common sense assumption or estimate at the time of his making his statement as in the case of his assuming or estimating that the Plaintiff had reached about the 3rd step on the staircase when he fell.

49. In my view these inconsistencies did not go to any fundamental issues.

50. I accept Mr AU as a reliable and truthful witness.

51. Equally in my view the 1st Defendant was reliable and truthful. He presented as a coherent and direct individual. He answered questions put to him without prevarication or any discernible attempt to minimise his own actions or exaggerate the degree of care he took in driving away from the bus-stop.

52. This was illustrated by his estimate of the speed the bus attained after leaving the bus-stop as being 15 - 20 kph whereas in his witness statement he had given an estimate of 10 - 15 kph.

53. His evidence in describing the circumstances in which he had departed from the bus-stop and how he had driven the bus in those circumstances made sense.

54. In short both AU and the 1st Defendant gave straightforward unembellished evidence which was consistent both within their own evidence and between themselves and which accorded with common sense.

55. I found both to be reliable and credible. In coming to that conclusion I have considered all of the evidence in the case. I accept from their evidence that the bus driven by the 1st Defendant pulled out from the bus-stop without any unusual motion due to braking or jerking or indeed from any other reason.

56. The evidence of the 1st Defendant that the bus pulled up well short of the junction traffic lights was never effectively challenged. Nor was there any contradiction of the 1st Defendant's evidence that the lights were red when he left the bus stop to proceed towards the junction.

57. Taking these two matters together it seems most improbable that the bus would accelerate quickly towards red traffic lights and then brake abruptly while still considerably short of them. I bear in mind AU's evidence that the bus did not stop immediately after the Plaintiff fell. That evidence accords with the evidence of the 1st Defendant that he heard a noise but did not bring the bus to a halt until he had been told someone had fallen. Accepting that even with that delay the bus still stopped short of the traffic lights, those lights being red seems an improbable reason for any abrupt braking by the bus causing the Plaintiff to fall.

58. No other reason was suggested in evidence for the 1st Defendant to have abruptly braked the bus, though I take into account in this regard that the Plaintiff's view of what was occurring outside the bus in terms of road conditions at the time he fell was non-existent or he was in the stairwell.

59. The Plaintiff's more general allegation that the bus "jerked" can also be brought within the pleadings in my view, namely within particular (a) of paragraph 4 of the Statement of Claim which is in general terms and in respect of which in my view a "proper precaution" as pleaded would be to drive the bus so as not to have it jerk or move in any abnormal manner.

60. But even on this basis, and accepting the evidence of the 1st Defendant and AU in this regard and bearing in mind the unreliable nature of the Plaintiff's evidence, I am satisfied on the balance of probabilities that the 1st Defendant drove the bus away from the bus-stop with no unusual movement or jerking and in accord with his duty of care to his passengers whether seated or unseated. I bore in mind in coming to that conclusion that the 1st Defendant had bus driving experience of only 7 weeks. Nevertheless I was satisfied his driving on this occasion was blameless.

61. I am satisfied that there was nothing in the physical or mechanical condition of the bus which would have caused it to move or jerk in any unusual manner and indeed no real issue was made on this point by the Plaintiff during the course or the evidence. This aspect of his pleadings in negligence against the 2nd Defendant was not supported by evidence and was effectively not proceeded with.

The Law

62. In reaching these conclusions I have had in mind the judgment of Simon-Brown LJ in Fletcher - v - United Counties Omnibus Co. Ltd. Unrep, Court of Appeal, handed down on 1st December 1997 to the effect that there may be occasions when special passengers, such as those who are elderly or infirm or are encumbered by luggage, require special care to be taken by a bus driver but I do not think that a passenger carrying plastic bags on a Hong Kong bus would be one so "encumbered by luggage" as to require any care by the driver above that to drive the bus smoothly and without abnormal or sudden movement. That was, in my findings, in fact done by the 1st Defendant in this case. Indeed in that same case the same judgment also included this statement of the brief report of Wrag - v - Grant and London Passenger Transport Board in (1966) 116 L. Jo. 752 contained also in Binghams Motor Claims Cases 10th edition : -

"It must be common knowledge that when a bus was being driven in a normal fashion movements of the body of the bus could be felt and that as it went around (a) bend even at a moderate speed it would not be unusual for it to sway …… Anyone standing or just about to sit down would be inconvenienced by the sway and might momentarily lose his balance : that was even more true of anyone mounting the stairs while holding two bags in one hand as the Plaintiff did and momentarily not holding on the rail. It was impossible to say that if a person did fall down that was evidence of negligence against the bus driver."

63. With that principle I agree. A normally and carefully driven bus must necessarily move about to some extent. But to succeed in negligence a Plaintiff must establish something more than that a normal and unremarkable movement of the bus caused him to fall. That is so even if the Plaintiff was climbing a staircase or was otherwise unseated.

64. As said by Simon Brown LJ in Fletchers case …

"Really it seems to me no more than a matter of common sense to recognise that drivers of public buses cannot sensibly be expected to wait for boarding passengers to take their seats..... before they can properly drive away the bus from the stop. Of course bus companies and bus drivers must take steps to ensure the reasonable safety of their passengers but, as it seems to me, that duty is satisfied by the provision within all these public buses of appropriate safety supports."

65. And that in my view is the situation in the present case. The bus, from the photographs in Ex D1 was provided with adequate handrail fixtures in and at the top of the staircase and the 1st Defendant was under no obligation to wait for the Plaintiff to be seated so long as he drove the bus from the bus-stop smoothly and with no abnormal movement which I am satisfied he did. I am satisfied that in driving the bus away from the bus-stop in a smooth, normal manner without unusual braking or other movement the 1st Defendant had complied with the provisions of Regulation 45 (1)(d) of the Road Traffic (Public Service Vehicle) Regulations and had fulfilled his common law duty of care to the Plaintiff.

66. In my view the Plaintiff fell because he simply overbalanced, most likely because as a result of carrying the plastic bags he had chosen, as a matter of momentary convenience, to release both his handgrips and the normal movement of the bus then caused him to overbalance and lose his footing on the staircase.

67. I might add that some time and evidence during trial was spent on the issue as to whether residual disabilities of the Plaintiff caused by his 1972 accident may have caused or contributed to his falling on this occasion. The defendants pleadings were amended at a late stage to accommodate this issue. On the findings of fact I have arrived at it is unnecessary for me to make any further finding in this regard. There is certainly no obligation placed on the Defendants in this case to establish why the Plaintiff fell. The Plaintiff must establish his case against the Defendants. That he has failed to do.

68. I must say I have considerable sympathy for the Plaintiff. It is common ground that he presently has communicating hydrocephalus causing him considerable disability. His life has been and will continue to be difficult. Nevertheless on the evidence and my assessment of it his claim in negligence and breach of statutory duty against both Defendant's must fail.

Conclusion

69. Given my findings of fact the Plaintiff has not succeeded in establishing any breach of duty by the 1st or 2nd Defendants at Common Law or of Regulation 45(1)(d) of the Road Traffic (Public Service Vehicles) Regulations to Cap 374.

70. Accordingly I give judgement in favour of the Defendant's. I order Costs nisi to the Defendant's to be taxed if not agreed.

Representation:

Mr Ashok Sakhrani instructed by M/s Emersons assigned by DLA for the Plaintiff

Mr Alan Leong SC instructed by M/s Hastings & Co for the 1st and 2nd Defendant