TANG MUK KIU v. PARADIVE LTD AND ANOTHER

HCPI 285/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 285 OF 2003

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JUDGMENT

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Background

1. Cheng Lai Ha (“the deceased”) was born on 26 November 1965.  She was single and lived at all material times with her elderly and dependent parents.

2. The 1^st defendant Paradive Limited is a company incorporated in the Hong Kong SAR and was at all material times carrying on the business of a diving school.  The 2^nd defendant was a qualified diving instructor engaged by the 1^st defendant to conduct a scuba diving course on 14 and 15 July 2001 (“the diving course”).

3. On 14 July 2001, the deceased enrolled in the diving course for which she paid the sum of $2,600.  At about 2 p.m. that afternoon she attended a lecture for some three hours and at about 7 p.m., she went for further training in a swimming pool at Li Cheng Uk together with the 2^nd defendant.

4. The following day she together with some 30 other diving students and instructors travelled by boat from the Pak Sha Wan Pier in Sai Kung to an area at Tsim Chau.  As the other students were more experienced, the deceased and three other were grouped together.  All four were beginners and were to take what has been described as their first “open water dive”.

5. Having waited for the other instructors and students to enter the water and leave the vicinity of the diving boat the time came for this group of four to enter the water.  The first and second students entered the water, followed by the deceased.  Shortly after entering the water the deceased disappeared.  She was located at the bottom of the sea some 10-20 minutes later and was returned to the surface unconscious.  She was resuscitated and taken to the hospital in a critical condition.  Sadly she died the following day and at a subsequent Coroner’s inquest the jury returned a unanimous finding that she had drowned and that her death was caused by an accident.

6. The plaintiff is the mother of the deceased and the administratrix of her estate.  She brings this action for herself as the dependent of the deceased and for the benefit of the other dependents under the Fatal Accidents Ordinance (Cap. 22) and for the benefit of the estate of the deceased under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23).

Quantum

7. Both defendants in these proceedings are represented by the same firm of solicitors and counsel.  In the event that the plaintiff succeeds on liability and subject to any issues of contributory negligence, it has been agreed between the parties that the quantum of the plaintiff’s claim is $1,655,127.89 plus interest.

Liability

8. In the light of the agreement as to quantum, the issues before me are to what extent (if any) were the 1^st and 2^nd defendants liable for the death of the deceased and if so, whether the deceased did in any way contribute to her own death and if so to what extent.

The evidence

9. It has been agreed between the parties that the transcript of the proceedings before the Coroner should form part of the evidence before me.

Ms Wong Kam Fung

10. One of the witnesses called in the Coroner’s inquest was a Ms Wong Kam Fung.  Ms Wong was one of the other students who attended the diving course conducted by the 2^nd defendant on 14 and 15 July 2001.

11. She did not know the deceased and did not meet her until the morning of 15 July 2001.  She described her own theory lesson and training in a swimming pool (the deceased was not present).  One of the exercises in the swimming pool was to learn to use a buoyancy control device which is an inflatable vest or harness to which the compressed air tank is attached.  The buoyancy control device or “BCD” and its operation and use were, it is apparent, a critical part of the training received by the students.  It was described by her (and other witnesses) as the means by which a diver controls his/her ascent or descent when in the water.  She said that on the front of the BCD there is a mouth piece and two buttons.  By pressing one button the BCD would be inflated and as a consequence a diver would float on the surface of the water (or return there if beneath the surface).  By pressing the other button the BCD would deflate and the diver would sink below the surface of the water.  The BCD could be manually inflated by using the mouth piece.

12. After the more experienced divers had entered the water, Ms Wong described the course of events leading up to the disappearance of the deceased.  She said that the 2^nd defendant was in charge and in addition, there was “another instructor” (who is more accurately described as the 2^nd defendant’s assistant).  His name was Ng Tsz Kin.  She described how each of the four students were instructed to take up, put on and check their equipment prior to entering the water.  One of the significant observation she made was that at all times both in and out of the water the students were to be in pairs.  This has been described by other witnesses as the “buddy system” and as will become apparent forms a critical part of the safeguards to be in place at all time.  She described how she and another student were to become a pair and the deceased and the 4^th student were likewise be a pair.  After each of them had been assessed by the 2^nd defendant as to how much lead weight was required to be carried, they prepared to commence to dive.

13. Ms Wong said that the 2^nd defendant’s assistant Mr Ng was the first person to enter the water.  The 2^nd defendant remained on the boat deck.  She was the first of the students to enter the water.  She did this by stepping off the back platform of the diving boat having first inflated the BCD as she had been taught.  Once she had floated to the surface, she was then required to remain in the vicinity of Mr Ng.  She said that she had some difficulty doing this because she drifted away from him and the boat either by reason of the tide or wind or both and was required to swim back to the boat at least two or three times.

14. The next person to enter the water was the student who had been partnered with her.  Shortly after entering the water, she complained that there was a problem with her air tank riding up and striking her on the back of the head.  Ms Wong said her partner then requested the assistance of Mr Ng to fix the tank and he advised her to swim closer to the back of the boat for that purpose.  She said that given the “buddy system”, she was required to go with her.  After that student’s tank had been fixed, Mr Ng suddenly said that one of the class was missing.  The person missing was the deceased.  Ms Wong said that she had seen her enter the water prior to Mr Ng fixing her partner’s air tank and had been her surface with her back to her.  She said that it took Mr Ng about three minutes to make the adjustment to the air tank of the other student and it was after this that it was discovered that the deceased was missing.

15. She estimated that there was about eight minutes between each of the students entering the water.  She was asked whether the 2^nd defendant had checked to see that her BCD was properly inflated before she entered the water.  She said he had not.

Mr Liu Wai Lam

16. Another witness at the Coroner’s inquest was Mr Liu Wai Lam.  Mr Liu was a diver with some experience albeit that he was also a student and was one of the group of 30 on the diving boat that day.  He and his partner were the ones who located the deceased on the seabed.  This witness described how having brought the deceased to the surface she was handed over to the more experienced instructors who had come to their assistance and that one of them immediately inflated her BCD so that she could float on the surface of the water.  He confirmed the evidence of Ms Wong that the current on that day was “quite strong”.

Chiu Chak Wing

17. Chiu Chak Wing, a sergeant of police, also gave evidence at the Coroner’s inquest.  He was a diving supervisor and instructor and was qualified in a number of other aspects of diving.  He was part of the police investigating team responsible for enquiring into the death of the deceased.  He examined three pieces of diving equipment used by the deceased on that day, namely, the BCD, the regulator and the swim fins.  His examination revealed that the BCD was for all intents and purposes functioning normally and did not leak.  However, when he came to check the regulator, he found small areas of damage in the vicinity of what he described as the “bite part”.  He said the rubber in that area had oxidised albeit that it was still usable and posed no threat.  His check of the low pressure hose which connects the regulator to the BCD revealed that it was difficult to connect because a spring loaded valve did not function properly.  (Possibly because of the presence of salt crystals.)  He said if you were not experienced with this type of equipment it could lead to the hose not being able to inflate the BCD.  He detected other irregularities in the equipment he examined.  The depth gauge attached to the regulator was reading inaccurately and could not be adjusted.  He also found leakages in three places on the regulator.  He said that the fins which had been issued to the deceased were too short and too soft given her height and weight.  He said they were more suitable for a child than an adult.

18. He said of the defects he had identified other than the defect with the low pressure hose from the regulator to the BCD, none of them individually could have contributed to the death of the deceased.

The 2^nd defendant’s evidence

Ho Ching Yu

19. The 2^nd defendant gave evidence at the Coroner’s inquest and before me.

20. Having described his own qualifications and the preliminary theory and swimming pool instructions, he described how it was that each of the students entered the water on that day.  He said that after they had assembled on the boat deck and had conducted their “buddy checks”, (i.e. they checked to see that their partner’s equipment was functioning properly) each in turn had to descend from the main deck down a ladder to the dive platform at the rear of the boat.  Before they could do this, the air tank, BCD, flippers and mask, had to be removed because it was not practical to climb down the ladder wearing these.  These would be physically taken down to the platform where they would then be again put on.  There was insufficient room on the dive platform for the students to enter the water in pairs.  In fact, there was only enough room for himself and one student at a time.  It was his evidence that after they had put on their equipment the second time it was checked by him prior to them entering the water.

21. The 2^nd defendant gave evidence at the Coroner’s inquest and before me that he had checked in the case of each of the students on that particular day that their BCDs were inflated prior to them entering the water.  (This was in direct conflict with the evidence of Ms Wong Kam Fung, see para. 15 above.)

22. He said of the deceased that after the 2^nd student had jumped into the water and given a hand signal to indicate that she was “OK”, he turned to assist the deceased.  He said he checked her diving equipment and prepared for her to enter the water.  However, prior to her doing this, Mr Ng advised him that the 2^nd student had a problem with her air tank.  He said that he had instructed Mr Ng not to deal with that until such time as the deceased was in the water.

23. It was his evidence that it was the responsibility of Mr Ng to watch the deceased in the water and that after the deceased had entered the water and given him an “OK” sign, he then turned to look after the 4^th student.  As I have indicated earlier, this would then require him to arrange for the 4^th student and his equipment to be brought down to the platform at the rear of the diving boat.  Then the equipment had to be placed on him and checked and then only was the 4^th student ready to enter the water.  The 2^nd defendant said that after he saw that the deceased was quite “peacefully floating in the water”, he considered that it was reasonable for him and Mr Ng to attend to the other divers and to take their eyes off the deceased for a short time.  This was acceptable he said given that if she did have any difficulties she could cry out for help or slap the water with her hands.  It was, he said, his interpretation of the NAUI instructions for teaching beginner divers that it was permissible for the instructor or his assistant to take their eyes off his students in the water even when it was their first “open water dive”.

24. He was asked, both at the Coroner’s inquest and in-evidence before me, why it was that having become aware that the 2^nd student needed the assistance of Mr Ng that he did not stop the deceased from entering the water until such time as Mr Ng had attended to that student.  His response was that he considered that the time needed to resolve the difficulties of the 2^nd student would be very short and that therefore the attendant risk of the deceased remaining on the diving platform whilst wearing her full diving equipment outweighed the risks involved in her getting her into the water.

Expert witnesses

25. Expert reports were called on behalf of the plaintiff and the defendants and their reports were admitted into evidence by agreement.  Both experts gave evidence before me and were cross-examined.

26. On behalf of the plaintiff, Mak Man Tak, Mathew (“Mr Mak”), was called.  He was a scuba diving instructor.  He said that having considered the evidence provided to him in the form of statements and the transcripts of the Coroner’s inquest, it was his opinion that the procedures adopted and the level of supervision on the day the deceased drowned fell below the requirements of both the Professional Association of Diving Instructors (PADI) and the National Association of Underwater Instructors (NAUI).  He described both of these organisation as respected international diving instructor associations.  Attached to his affirmation were the relevant portions of the instruction manuals for each.

27. Mr Mak described to the court diving equipment, similar to that used by the deceased on that day in July 2001.  In particular, he gave details of the regulator, which is attached to the air tank.  This he said has attached to it four separate hoses, namely, the primary and secondary regulator hoses on the left-hand side and the pressure gauge and low pressure inflator hose on the right-hand side.  There are two mouthpieces from which the diver can obtain air, one being attached to the primary regulator, the other to the secondary regulator (the second mouthpiece, being a backup).  The low pressure inflator hose attaches to the BCD and is used to inflate it when required.

28. He described the “buddy system”.  Fundamental to which is the premise that no one should ever dive alone.  He said that throughout the whole of the preparation, planning and the actual dive each diver should be paired with a “buddy”.  The buddy system is introduced to new divers at the very beginning of their training and thereafter is employed throughout.  Divers should always be paired with another and are required to at all times be in the company of one another.  He said that the instructor should not be part of the buddy system.  He was there to supervise and this could not properly be done if he was partnered to one of the students.  He said critical to the proper working of the buddy system is the fact that each of the students becomes used to checking not only his own equipment but also that of his partner.  If the instructor, instead of supervising is a part of the system then, it breaks down.

29. It was his opinion that the procedures adopted by the 2^nd defendant failed to adhere to the “buddy system”.  He observed that once the deceased entered the water, the 2^nd defendant’s attention was directed to the 4^th student who was preparing to enter the water.  The fact that his assistant Mr Ng then moved to attend to the 2^nd student who had difficulties with her equipment resulted in the deceased being left alone without any supervision for about two minutes.  This, he said, violated the supervision guidelines laid down in the NAUI that : “Students should always be accompanied by an instructor or a certified assistant during entry-level training.”  He said that an inexperienced diving student left alone without supervision for two minutes in open water was exposed to a great risk.

30. It was his observation that the conduct of the 2^nd defendant in allowing the deceased to enter and remain in the water alone (as was described by Ms Wong at the Coroner’s inquest) defeated the purpose of the buddy system and enhanced the danger of a student drowning.

31. In cross-examination it was suggested to Mr Mak that it was acceptable for a student to be left unattended in the water for two minutes and he was emphatic that this was totally unacceptable.  He was asked whether it was sufficient for the instructor or the assistant to rely upon the student calling out for assistance in the event that this was necessary and again, Mr Mak said that this was not acceptable practice and that the student must at all times be within the visual sight of the instructor or his assistant.  He added that an instructor on the boat with student divers in the water may find it extremely difficult, because of the surrounding circumstances (wind, the waves, other people talking) to be alert to the possible shout for help from a student in distress.

32. Mr Mak confirmed it was permissible after the buddy check had been completed for the instructor himself to double check the students’ equipment.  In addition, he said that it was important for those who were paired together to enter the water at or about the same time and to ensure that they were within sight of each other at all times.

33. He said that in his opinion the 2^nd defendant could have improved the overall supervision of the students in the circumstance by setting up a marker ball and a horizontal line linked to the stern of the boat which was described as a “stern or current line” so that the diving students could hold on to this to secure their position on the surface and remain within sight of the instructor and each other.  This, he said would, greatly facilitate the overall supervision as every student is expected to grab the stern line.  He said that there was a strong tide in the area on the date the deceased met her death, it was apparent that a student could easily drift out of sight of the instructor.  (The 2^nd defendant for his part said that he did not think that this was necessary on the day the deceased died.)

Mak Fook Wah

34. Mr Mak Fook Wah gave evidence on behalf of the 2^nd defendant as an expert.  He was employed by a trading company and also taught scuba diving.

35. When asked to comment on the procedures adopted by the 2^nd defendant and his assistant on the day the deceased died he said that they were appropriate.

36. Like the expert witness who gave evidence for the plaintiff, he stressed the importance of the buddy system as regards the safety of the students.

37. On the subject of the use of a stern or current line he agreed with the 2^nd defendant that generally speaking it was not necessary unless there was a strong current flowing.  He said it was acceptable practice for students to enter the water one at a time if the diving platform could not accommodate them in pairs.

38. Like the 2^nd defendant he did not accept that it was better practice not to have allowed the deceased to enter the water at a time when there was obviously a problem with another student which required the attention of the instructor’s assistant.

39. When it was put to him in cross-examination that an instructor should not leave a student on his first open water dive alone in the water for two minutes or more, he disagreed.

40. Like the 2^nd defendant he emphasized that students who get into difficulty are told to alert the instructor by calling out for help or by slapping the water with their hands.  This he said was a sufficient safeguard in the circumstances.

41. However, in cross-examination he did concede that the role of the instructor’s assistant was to monitor each of the students as they entered the water.  If the instructor’s assistant was doing something else — for example, adjusting the air tank of one other student then the system breaks down.  He ultimately conceded that the instructor or his assistant should at all times keep all of the students within sight.  He agreed that when things go wrong when diving they do so very quickly and hence the need for vigilance.  He agreed that there is always a risk that a student may intentionally or inadvertently deflate their BCD and that the instructors must always be alert to this possibility.

42. Both Mr Mak (for the defendants) and the 2^nd defendant considered that the procedures adopted on the day the deceased drowned were sufficient.  I do not agree.  I agree with Mr Mathew Mak, the expert called by the plaintiff that there were serious deficiencies.

43. I accept the evidence of Mr Mathew Mak as to the proper procedures to be adopted.  I reject the evidence of Mr Mak Fook Wah and the 2^nd defendant where it does not agree with that of Mr Mathew Mak.

Liability

44. It is accepted by both defendants that they owed a duty of care to the deceased.  The central issue before me to determine is whether they were in breach of that duty of care and did those breaches result in her death and if that is so whether there was any action or inaction on the part of the deceased which could be said to have contributed to her death.

45. Because the dive platform at the rear of the boat could only accommodate one student and the 2^nd defendant, this meant that there was a time gap of some three minutes (at the very minimum) between each of the students entering the water.  Whilst Mr Ng was in the water as they entered, nevertheless, the buddy system was not properly implemented.

46. It is apparent to me from the transcripts of the evidence of the 2^nd defendant in the Coroner’s inquest and before me that at the critical time after the deceased entered the water, the 2^nd defendant’s attention was diverted to the 4^th student and he was not paying attention to the deceased.  It is equally apparent that his assistant Mr Ng was otherwise engaged with the 2^nd student and likewise was not paying attention or sufficient attention to the circumstance of the deceased.

47. The procedure adopted whereby the partners checked each other’s equipment on the main deck of the dive boat and then removed the majority of their equipment to climb down the ladder to the dive platform was flawed.  The fact that Mr Ng was permitted to attend to the adjustment of the tank of one of the students leaving the deceased unattended in the water was not only in breach of the accepted guidelines but was inherently dangerous.  Both the 2^nd defendant and Mr Ng by their conduct put the deceased in danger.

48. The procedures adopted by the 2^nd defendant on the day in question were obviously not in compliance with the guidelines provided to instructors.  In the NAUI guidelines which were exhibited to the affidavit of Mr Mathew Mak, it is apparent that the equipment and buddy check must be performed by the divers in pairs one against the other with the instructor or assistant observing.  Each student must check his equipment and each pair must check each other’s equipment.  They must check that the BCD is adjusted, inflated and deflated; they must check the air valve is turned on that the primary and secondary regulator operations are correct and so on.  This must be done immediately before entering the water.  In the instant case, whilst this may have been done on the main deck of the dive boat, this was then rendered nugatory when they each removed that equipment to climb down the ladder to the dive platform.  It is immediately apparent that this has compromised what is accepted as a standard practice and the standard practice intended to ensure the safety of the students.  The buddy system breaks down at this point.  That compromise was on this occasion directly attributable to the size of the vessel provided.

49. The 2^nd defendant says that he observed the deceased for approximately five seconds and then his attention was directed to the 4^th student.  Mr Ng did not give any evidence about having seen the deceased enter the water.  I am satisfied that in the next two minutes when neither Mr Ng nor the 2^nd defendant were directing their attention to the deceased that she slid below the surface of the water.  As a consequence, she was in the water in a situation of extreme danger and was then as a direct consequence of the negligence of both the 2^nd defendant and his assistant Mr Ng, drowned.

50. Whilst unattended in the water the deceased became submerged.  There have been several theories suggested to me as to how this could here happened :

(i)      her BCD was not inflated properly or at all because of the defective valve connecting the low pressure hose to it; or

(ii)      her BCD was not inflated properly or at all because of an oversight on her part which was not noticed and corrected by the 2^nd defendant; or

(iii)     she deliberately or accidentally deflated her BCD, began to sink below the surface and panicked.

51. Having considered all of the evidence before me with respect to the allegations of the provision of defective equipment, I am satisfied that whilst it is correct to say that the allegations per se are accurate in as much as (i) there were air leaks detected on the regulator; (ii) there was some corrosion around the area of the mouth piece provided; (iii) there was a problem with the valve to the low pressure hose which meant that it needed to be firmly seated home before it would function properly, (iv) the swim fins produced to the deceased were inadequate.  I am unable to say that these individually or collectively contributed to the death of the deceased.  The most critical of all of these defects is the valve of the low pressure hose attached to the BCD.  If this had not been properly fixed to the BCD then, it could not have been inflated.  However, after the deceased had been located beneath the surface of the water, Mr Liu described how one of the other instructors who came to his assistance after he had found the deceased, was able to inflate her BCD.  Given that, it seems to me, that in all probability, the low pressure hose was, properly attached to the BCD when the deceased entered the water.

52. In my opinion when the deceased entered the water her BCD was not inflated properly or at all not because of any defect referable to the low pressure hose connection to the BCD but because of an oversight by the deceased which was not corrected by the 2^nd defendant.  The 2^nd defendant says that he personally checked each of the students who entered the water to ensure that their equipment was properly attached and working.  Ms Wong, the 2^nd student, told a different story.  She said that the 2^nd defendant, in her case, did not check to ensure that her BCD was inflated.

53. As to the suggestion that the deceased may have inadvertently or intentionally deflated her BCD causing her to sink below the surface, whilst this is a possibility, I am satisfied that the more probable cause of her sinking below the surface is, as I have said, that the BCD was not or was not properly inflated before entering the water.  Even if this hypothesis was a possibility I would still find that the defendants were negligent and that negligence had caused the death of the deceased.  She should never have been left in circumstances where this could have occurred and more particularly gone unnoticed.

54. On this fatal day a failure to follow established procedures resulted in the death of the deceased.

55. The weather conditions on that day clearly would have justified the putting out of a stern or current line and float which would have ensured that all of the students remained in close proximity.

56. Some time in the hearing before me was taken up with a dispute as to what is the appropriate way for diving instructor to conduct a neutral buoyancy test.  This test is designed to establish how much weight each of the students should carry so that when they are in the process of diving, they would not rise to the surface unintentionally.  The expert called on behalf of the plaintiff said that it was improper to conduct this test without the student wearing the air cylinder, regulator and mask.  The 2^nd defendant and the expert called on his behalf disagree, I am inclined to accept the evidence of the plaintiff’s expert.  However in the final analysis, I am unable to say whether in the circumstance, the course adopted by the 2^nd defendant contributed to the death of the deceased.  There is nothing in the material before me to suggest that the amount of weight provided to the deceased was either in the circumstance too little or too much.

57. I am satisfied the 2^nd defendant together with his assistant Mr Ng were negligent in the conduct of this diving course.  It follows that given that it is accepted that they for all intent and purposes, the 2^nd defendant was the agent of the 1^st defendant, therefore, they are jointly and severally liable for the actions and the negligence of the 2^nd defendant and his assistant Mr Ng.  Given my findings that I am unable to say that the defective equipment provided by the 1^st defendant contributed to the death of the deceased, there is no appropriate basis for apportionment as between them.

58. The deceased had enrolled in what she assumed to be a reputable diving course to be conducted by persons with the requisite skills.  I am satisfied that this did not happen.  Diving and particularly diving for beginners is an inherently dangerous sport.  That much has been accepted by both of the experts who gave evidence before me.  It is by reason of this that it requires meticulous attention to detail and to apply established and accepted standards and procedures.  The rules that have been set down by the international diving instructors associations are to my mind clear and unambiguous.  A beginner must be attended to and observed at all times.  They must be checked at all times.  On this occasion, the deceased was not and her tragic death ensued.

59. I come now to consider the issue of contributory negligence.

60. As I have said earlier, I am satisfied that to requisite standard that given all of the above, that the deceased herself failed to inflate or fully inflate her BCD before entering the water.  In so doing she has contributed to her own demise.  I believe that the quantum of that contribution is 20% and no more.  Those who conduct courses such as these must be critically alert to the very real risks that a beginner may not always follow instructions.  That is why check systems are put in place.

61. There will be judgment for the plaintiff in the sum of $1,324,102.40 together with interest.  I will leave it to the parties to calculate the exact amounts of interest with liberty to apply.  There is no need to apportion that sum as both defendants are jointly and severally liable.

62. There will be an order nisi that the defendants pay the plaintiff’s costs.  If required the plaintiff’s costs will be taxed on Legal Aid Regulations.