The Kowloon Motor Bus Co (1933) Ltd v. Ho Kwok Man and Another
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IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 6219 OF 1986 ____________________ BETWEEN
____________________ Coram: H.H. Judge Scriven in Court ____________________ J U D G M E N T ____________________ 1. This action involves a claim and a counterclaim for cost of repairs and loss of use of two vehicles involved in an unusual type of collision on the 8th August 1985. 2. On that day at about 5.15-5:30 a.m. the Plaintiff's Leyland double decker bus was being driven along Po On Road Kowloon where it was in collision with a vehicle owned by the 2nd Defendant and comprising a lorry base with a jointed and swivelling arm attached for the purpose of lifting a platform to enable, as in this case, overhead electric lamps to be serviced and cleaned. 3. The 2nd Defendant's vehicle was being used for that purpose at the time of the collision that is to say with the arm raised to some part of its full extent, and with the platform occupied by the 1st Defendant, in the act of cleaning a lamp at the side of Po On Road. The movement of the platform and the arm was at the material time controlled by the 1st Defendant from his position in the platform. 4. The time of the collision was agreed to be within the hours of darkness) that is to say that visibility was dependent on artificial lighting, the lighting of the street lamps and of the vehicles. 5. The Plaintiff’s bus was driving towards the Defendant' s vehicle - they were facing each ether and Po On Road is a wide road but parked vehicles on either side reduced each carriageway to a single lane so that the vehicles were effectively in adjacent lanes. I had no direct evidence as to the width of carriageway left for passing vehicles on either side, but with the agreed bundle of documents is a plan suggesting 8 metres of roadway available in all and 4 metres of roadway on the Defendant’s side. The plan actually suggests that there was more than half of 8 metres of roadway available on the Plaintiff’s side because, whilst there were numerous parked vehicles generally in Po On Road, at the point where the vehicles collided there was not one parked in the Plaintiff’s rear side. I find however that the deployment of the vehicles parked on either side was such that for all practical purposes moving traffic was restricted to its outer, fast, lane and each had approximately the same width of carriageway available. This was approximately 4 metres of road for each vehicle. This is the point where the paucity of precise oral evidence has made my task rather more difficult than usual, since I had no evidence of the precise width of either vehicle. The 1st Defendant described his vehicle as being about 6' wide, and I will assume both vehicles to be about the same width. 6. If each vehicle had a carriageway of 4 metres then allowing safety margins on either side, of about 3 feet, I would expect passing vehicles to be able to do so with a clearance of 6 feet between them assuming each vehicle to be driven in the centre of its available carriageway. 7. The Plaintiff's driver of this bus does net suggest that the Defendant's vehicle was parked on other than its correct side of the road and the 1st Defendant who did not, surprisingly see the bus before the impact says his vehicle was parked with its offside about 2' from the centre line. He suggested that because of vehicles parked on the other side and with other obstructions such as pipes stacked in parking bays, that vehicles such as the Plaintiff's bus had to cross the centre of the read. I do not accept that and I find as a fact that the Plaintiff's vehicle did not traverse the centre of the road. 8. The evidence of the bus driver was that as he turned into this, Po on, road he saw the flashing lights of a vehicle which turned out to be the Defendant's vehicle ahead of him on the other side of the carriageway. He was 400-500 feet away when he first saw it and as he closed to within 50-60 feet he saw that the platform was at street light level but, he said:-
He had seen the yellow lights of the Defendant's vehicle but did not remember if they were flashing lights. The Defendant's evidence was that their vehicle exhibited not only 4 flashing yellow lights at the corners but that the vehicles indicators were also being used as warning lights. I confess I cannot see the need for this extra precaution and I make no finding to that effect whilst I do find that the four special lights mounted at the corner of the vehicle were in operation, yellow coloured, and flashing. 9. The lamp being cleaned by the 1st Defendant was mounted on a vertical post at the kerbside and from the agreed documents it is evident that the mounting height of the horizontal (or, more precisely, curved) arm holding the lamp was at a height of 25' above the pavement. Then the horizontal arm protruded about 1 metre out towards the centre of the road, according to the 1st Defendant. 10. There is a scarcity of precise evidence as to the point of impact on the Defendant's vehicle but having heard the evidence and in spite of the loose reference to "the platform" on the various statements to the police I find that the platform in which the 1st Defendant was working was not actually struck. I find that the "elbow" as it was referred to, of the arm of crane which lifts the platform, was struck. 11. I had photographs exhibited to me, showing the damage to front offside of the bus and which is restricted to the very uppermost part of the vehicle. I did not have evidence of the height of the bus but judging from the exhibited photographs I do not think I would be unfairly stretching judicial cognizance by holding that the impact was at a height of 10'-12' above the ground. The first defendant was miraculously not thrown from his platform or injured and when the Plaintiff's driver dismounted he said he found the platform "swinging" near his upper deck. 12. The 1st Defendant produced a sketch plan (Ex. D3) which at first he claimed authorship for, but later denied this, and which sketch showed the elbow protruding over the offside of the Defendant's vehicle at the time of the impact. In evidence he had said that his vehicle was parked with its offside about 2' on its side of the centre of roadway. He described how, to get at the lights, the Defendants would normally park underneath and simply raise the arm and the platform in the same longtitudinal line as the vehicle, that is to say without traversing. Because of the parked cars the light to be cleaned was not directly under the vehicle; the platform therefore had to be elevated over the rear side, to do this the arm had to be turned and the effect of that, as a counter balance of course, was that part of the arm had to project over the other offside. The joint was therefore over the offside and that means that the entire apparatus was not confined within the area of base of the vehicle, the lighted base. There was no light on the platform, but that was actually lighted up in this instance by the very lamp the 1st Defendant was cleaning. The elbow projecting over the opposite side was according to the evidence not lighted, although it was said to bear diagonal yellow stripes. 13. This means, and I so hold, that there was an unlighted projection from the Defendant's vehicle, above it and projecting towards the offside of the road. 14. I would have appreciated some technical evidence to give geometrical precision to the height of the elbow at any given degree of elevation of the arm, but I was not so aided and I must do the best I can in general terms. When pressed the 1st Defendant agreed no more than that this 'elbow' protruded 1' over the offside of his vehicle. 15. With no evidence of the impact from the 2nd Defendant, which I find truly remarkable, I have to assume that he was busy with his work at the time and I discount any evidence of his as to the speed or manoeuvres of the bus - he did not see it and I accept the bus driver's evidence that after the impact he stopped within a vehicle or so length, without altering course. I find no evidence of excessive speed and no truth in the suggestion of the 1st Defendant that the bus traversed the centre. I hold that at all material time the bus was driven at a Drover speed on its proper side of the road. 16. It would be tempting to accede to the theory developed by Mr. Tracy for the Plaintiff that the accident occurred because the 1st Defendant with the noise of the vehicle and unaware of the bus's approach, started to lower himself and his platform so that the "elbow" protruded just as the bus arrived. That may well have happened; it is a plausible explanation for a very strange accident but I do not think that on the evidence I can turn such a conjecture into a reasonable inference. I have to work from a "still" picture and draw such inference as I can from the fact as I find it that the elbow protruded into the Plaintiff's side of the roadway at a height of about 10-12 feet and, whilst there, was struck by the Plaintiff's bus. 17. Should the driver of the bus have seen it? Mr. Hoosenally compared the situation with that of a bus driver entering a tunnel. He cannot in that situation be heard to say he did not notice how low the tunnel was, (unless of course he was misled by inaccurate signs) and I would accept the generality of that proposition, but not the analogy; if the 'elbow' was as I have found at a height of 10-12 feet above the ground then the normal driving lights of a vehicle would not pick it out, in all probability. But supposing it was a country lane and a tree or a branch thereof projected across it, could the bus driver say that at 10-12 feet above the ground it was beyond his normal limit of vision and beyond that which he could reasonably be expected to illuminate with his lights. Would he be liable in negligence to a passenger in the front of the top deck were he injured in the collision? Mercifully no one was in such a position in this bus and I think that if the accident occurred in broad daylight the driver might at least be partically to blame (Radley - v. - LPTB [1942] 1 AER 433). But this was not daylight and then the Defendant's obstruction was not notoriously or regularly present. I think the answer lies on the fact that the yellow flashing lights warn only of the extremities of the base of the vehicle and give no warning beyond that; the driver saw the lights of the vehicle and the elevated platform itself but did not see the 'elbow'. The flashing lights are not, I hold, intended to illuminate, but to warn of, a danger within their parameters. It is in my judgment not surprising that the bus driver having his attention drawn to the lighted vehicle and seeing the lighted platform above it and to the far side did not see the unlighted elbow; his own lights would not focus at that height. 18. And what of the Defendants? To have a stationary vehicle on the roadway at night is to create an obstruction of which they must warn. (Whiting - v. - Middx C.C. and Harrow VDC [1947] 2 AER) To light of course is one way of warning and I had evidence that "cones" were placed behind the vehicle that is in the opposite direction from which the bus approached, but none 1n the direction of the bus. The warning the Defendants gave of this obstruction to the bus driver was solely that of drawing attention the vehicles presence by flashing lights; that part which I find projected over the centre of the road was not illuminated, and so no warning was given of an unusual obstruction in the air at 10'-12' above the ground. Failure to warn by for example diverting traffic with lights) lighting the elbow itself, or floodlighting it from the platform of the lorry amounted in my judgment to negligence. Therefore I am satisfied on balance that there was created by the Defendants an obstruction on the Plaintiff's carriageway, and which might have struck not only a bus, but any vehicle of similar frontal dimensions, and that this was not the subject of any or adequate warning issued by the Defendants so that they are liable in negligence therefore. 19. Similarly I am satisfied on balance that the bus driver was driving with reasonable care, that it was not unreasonable of him not to notice the projecting elbow of the crane, and that such would not in the ordinary course be illuminated by adequate forward shining driving lamps. 20. In these circumstances the Defendants are entirely to blame for the collision. 21. I now turn to the Plaintiff's damages. They claim not only the cost of repairs but also the cost of loss of use of the vehicle. 22. So far as the cost of repairs is concerned the Plaintiff's adduced evidence in support of this claim in the sum of $9,207.75 and the Defendants called no evidence to contradict this sum. I find the cost reasonable and duly proved in the sum of $9,207.75. Next there is an adjustor's fee and Mr. Lee Kai Hing satisfied me that he reasonably and properly earned this fee in preparing by adjustment the Plaintiff's claim in this action in the sum of $220.00. 23. And then I had the somewhat sophisticated claim for loss of use for 8 days at $379 HK per day. I am satisfied on the evidence that there was no unreasonable delay and the Plaintiff's vehicle was repaired with all reasonable despatch. As to the appropriate method of computing the loss I was referred to the decision of hunter J. (as he was) in High Court Action No. 791 of 1984 in which the Plaintiffs were the Plaintiffs in the present case. In reviewing the authorities and coming to his conclusion, in the case of a completely destroyed and “written off” bus, Hunter J. adopted one of the alternative formulae stated by Lord Lane in BIRMINGHAM CORPORPTION - v. - SCWBERY 1970 RTR 84. 24. When Hunter J. referred to the principles of assessing damages where the (vehicle) had only been damaged there is I think a clear misprint in the copy judgment supplied to me (Para 2 line 3 of Page 4) where the word "No" is omitted between "be" and "doubt" in the phrase "there would be (No) doubt on the authorities". I think with respect that the learned judge's observations on those authorities only coincide with the authorities he quotes if I insert the negative. Unfortunately the judgment has not appeared in the Hong Kong Law Reports so I cannot check it. In any event his remarks at that point are obiter the case he had in hand but apposite to this case and as I construe The GRETA HOLME 1897 A.C. and The MEDIANA [1900] A.C. the principle to be extracted is that in case of damage the Plaintiff need not be out of pocket to claim for loss of use by way or a damages claim. 25. I heard evidence from Doris Lai Ping Kwan the Plaintiff's Assistant Chief Accountant as to the accounting methods used by the Plaintiffs to evaluate the cost of keeping a spare bus available. 87 out of a 100 buses are scheduled to be on the read every day but the Plaintiffs have to provide a licenced scheduled service and they have to keep a bus or buses in a state of readiness. I accept that. I accept also that they keep no more than reasonably required for such purposes. The only matter really in issue is their method of computing the stand-by bus charges. Miss Lai calculated this at $502 per day, but the Plaintiff's claim $379 per day) in this action made up as follows on a daily basis:
Mr. Hoosenally generously says he does not attack the figures seriously but I am still required to indicate if I adopt the formula, for interest on capital value plus depreciation used by Hunter J. in following the Birmingham Corporation case which would result in a different daily loss, of $329. I think I have made my view clear that that was a total loss claim, where, on the authorities, I too would respectfully adopt that simple two item formula] but then this is a claim for a damaged vehicle, and I think the other formula propounded by Lord Lane in the same Birmingham Corporation case is the more appropriate, that is to say the cost of maintaining and operating the damaged vehicle but excluding running charges. The Plaintiffs have prepared these charges by reference to the cost of a stand by vehicle of a similar type and I see no reason to question the items or any of them, they seem to me to be proper standing charges, and the Defendant has proferred no other formula. 26. I accept the Plaintiff's computation which thus eliminates interest on capital value, but includes depreciation, and so there will be judgment for the Plaintiffs for $12,459.75 and interest thereon at 8% per-annum from 10 days after the accident that is to say from 18th August 1985 to the date hereof, and thereafter at Court rates. 27. The Defendant's counterclaim is dismissed but I should just say that had I found the Plaintiffs to be partly or entirely to blame for this collision I should have found the Defendant's damage claim proved in the sum of $4,370 but that I was not satisfied on balance that they had suffered any loss of use as pleaded. 28. The Plaintiffs will have their costs on the claims and counterclaims when taxed on the District Court Upper Scale if not agreed. Dated this 4th day of April, 1987.
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