Ip Yin Fun v. The Kowloon Motor Bus (1933) Company Limited and Another

HCA001624/1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

BETWEEN

Coram: Hon. Barnes, J. in Court

Date of Hearing: 13th & 14th May, 1987

Date of Delivery of Judgment: 14th May, 1987 (P.I. file)

___________

JUDGMENT

___________

1. At about 11.00 a.m. on the 18th of December 1983, the Plaintiff a 51 year old lady suffered injuries when travelling as a passenger on a double-decker bus, owned by tae first defendant and being driven by the second defendant. She had boarded the bus with her husband in Kwai Chung. They were making their first visit to the new residence of their son. Her husband was carrying three pieces of wood, one piece about three-foot long and the other two about one in length. There was no other evidence of the dimensions of the wooden boards. They were tied together by a piece of cord binding them length-wise and breadth-wise.

2. The plaintiff and her husband sat in the two front nearside seats on the lower deck, the husband occupying the nearside and the plaintiff the aisle side of the seat. The wooden boards were placed upright but leaning against the side of the bus immediately in front of the plaintiff's husband. They knew they had to alight at the bus-stop nearest to the Lung Cheung Restaurant at Ha Chuen, Yuen Long, but they were uncertain of their ability to identify the stop.

3. During the journey, at a time when the bus was stationary in a traffic jam, the plaintiff left her seat, went forward to the driver's cabin, and asked the second defendant about the location of the stop. He replied that it was three stops further on. The plaintiff resumed her seat, the bus eventually moved off and shortly afterwards stopped again at the bus stop near the Lung Cheung Restaurant. Whilst the bus was coming to a halt the plaintiff, getting ready to alight, stood up and from her standing position lost her balance and fell on to the floor. In so doing she suffered the injuries for which she now claims damages in this action.

4. By order of a Master, the action has been split with the result that my concern is with the issue of liability only. On the issue of liability, the plaintiff alleges that her fall was caused by the violent and abrupt braking of the vehicle by the second defendant when bringing the bus to a halt.

5. Both the plaintiff and her husband gave evidence that they heard a signal to the driver to stop at the stop which was their intended destination. They then saw the sign of the Lung Cheung Restaurant and realised that the approaching stop was their destination. The plaintiff then stood up, held on to the vertical handrail immediately in front of the seats which she and her husband occupied, and faced towards the rear where the exit door of the bus was positioned. The bus was one where passengers entered at the front but alighted at the rear. Her husband remained seated. The bus veered to the left and then came to a stop with such suddenness that she was thrown off balance and onto the floor. Other passengers then scolded the second defendant about the manner in which he stopped the bus. Eventually, the plaintiff was taken away by ambulance.

6. In cross-examination of the plaintiff, it was pointed out to her that she had not mentioned anything about violent braking of the bus as the cause of her fall when she gave her statement to the police a couple of days after the accident. Her explanation was that the statement was completed by a police officer who asked her questions and then compiled the statement by paraphrasing the effect of his question and her answer.

7. The only other witness apart from the plaintiff and her husband to give evidence was the second defendant. He said that when the plaintiff asked him about the proximity of her destination when the bus was stationary in a traffic jam just before the accident, he noticed that she was carrying a bundle of boards. He said that the bus was brought to a normal stop, that some passengers alighted and that he heard other passengers shouting out that someone had fallen. He left his cabin to investigate and found the plaintiff sitting on the floor with the bundle of boards also on the floor adjacent to her.

8. I found the plaintiff and her husband to be more credible witnesses than the second defendant. The second defendant's evidence that the plaintiff carried the bundle of boards towards the front of the bus when she went to enquire about her bus-stop I found to be incredible. The plaintiff said that she was carrying a handbag when she boarded the bus and there was no suggestion that her husband had anything to carry other than the bundle of boards. I cannot accept that the plaintiff would have been so concerned about the bundle of boards as to carry them with her when she approached the driver. In this court I particularly noticed that when she came forward to the witness box to give evidence she did not even bother to bring her handbag a fact which was highlighted when she was about to take her oath without the aid of her spectacles. I had to suggest to her that she bring her handbag from the seat in the public gallery where she left it when she came forward to the witness box. In the bus she had her husband with her, so there was no reason for her to be concerned about the boards being in proper custody as she left her seat. Here she was unaccompanied yet she came forward leaving her handbag in the custody of no one. If a lady can be so nonchalent about something so personal as her handbag would she be so ridiculously careful about three wooden boards of no appreciable value? I saw nothing to indicate that her husband was so disabled as to be unable to carry or care for the boards by himself.

9. The plaintiff and her husband impressed me as honest witnesses. The manner in which they gave their evidence convinced me that, though they could be mistaken, they were certainly truthful. I cannot say the same for the second defendant. As a result of my assessment of their reliability as witnesses, I have come to the conclusion that, where there is a conflict between the testimony of the plaintiff and her husband on one hand, and second defendant on the other, I should prefer their version.

10. I accept the plaintiff's explanation regarding the absence of any "pleading of particulars of negligence" against the driver in the statement taken from her when she was still in hospital being treated to the injuries she received in the accident. That statement I have found to be quite consistent with what she said in the evidence, namely, that it was the braking of the bus which caused her to fall. I accept her evidence and the evidence of her husband that she was holding onto the handrail while she stood waiting for the bus to come to a standstill.

11. I found as a compelling inference from the acceptance of their evidence that the braking of the bus was of such unexpected suddenness that she was thereby thrown off balance, caused to lose her grip and fall.

12. In the absence of any evidence suggestive of a non-negligent cause for that braking (which not only caused her to fall but also caused a reaction of alarm and anger from other passengers) I find that it was caused by the negligent driving of the second defendant. I find further that there was no negligence on the part of the plaintiff contributing to the accident. I, accordingly, decide the issue of liability in the plaintiff's favour.

Representation:

Miss Alice Mok (Tai, Ho & Chan) for Plaintiff

Mr. Michael Poll (Denton, Hall, Burgin & Warrens) for both Defendants.