IP KIN KOK v. FILM POWER CO LTD AND ANOTHER

HCPI473/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 473 OF 2004

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J U D G M E N T

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Background

1.  The plaintiff was a part-time stuntman.  He had been engaged to perform a stunt in the afternoon of 23 June 2001 for the purpose of the shooting of a film called “Fighting to Survive”.  He was supposed to drive a 16-seat minibus at the promenade near the junction between Cadogan Street and New Praya Kennedy Town onto a makeshift twin sloping platforms and cause the minibus to spring into the sea as if he had lost control of it.  The depth of the plunge into the sea was about 15 feet.  

2.  On that day, after the plaintiff had caused the minibus “the bus”) to plunge into the bottom of the sea, he was unable to swim to the surface of the water as originally planned and was nearly drowned.  He was then rescued by a diver who had been stationed nearby.  By the time he was rescued, he was already unconscious and had to be sent to the Queen Mary Hospital for resuscitation and treatment.  He also suffered a deep laceration wound over the right groin with muscle tear. 

3.  In this action, he sues the 1^st defendant for damages for personal injuries on the grounds of breach of employer’s duty, breach of the common duty of care under the Occupiers Liability Ordinance and negligence.  The claim against the 2^nd defendant, the stunt instructor, on similar grounds has been discontinued at the start of this trial.  This trial is just on liability of the 1^st defendant.  

The plaintiff’s case

4.  Before shooting the stunt, the plaintiff and the 2^nd defendant had inspected the 16-seat minibus in mid-June 2001 at Shaw Brothers’ Studio at Clear Water Bay.  It was planned that he would cause the minibus to plunge into the sea and he would then use the oxygen tank positioned next to him to breathe.  When the minibus has settled at the bottom of the sea, he would then unbuckle himself from the safety seatbelt and swim to safety. 

5.  The inspection of the minibus was conducted in the company of another person called Hak Chai who was engaged by the 1^st defendant to organise the stunt.  After inspecting the bus, the plaintiff requested the 2^nd defendant and Hak Chai to provide the following safety measures:

(1)	to remove the front windscreen of the bus;
(2)	to install a V-shape or four supporting points safety seatbelt at the driver’s seat;
(3)	to position at the elevated portion of the floor on the left-hand side of the driver’s seat and just below the position of the driver’s thigh a diver’s oxygen tank with an oxygen supply regulator and the oxygen tank should be firmly held in place by a buckle; and
(4)	to position four rescue divers at the stunt location.

6.  The plaintiff said that if the 1^st defendant should be responsible for the said safety measures, he would take the job.  The 2^nd defendant assured him that there would be no problem and also told him that he would be paid $8,000 by the 1^st defendant for this stunt. 

7.  On 23 June 2001 when the plaintiff arrived at the scene, he saw that the second defendant, the producer, the director and actor and the co-director were all there ready to shoot the stunt.  They then discussed the procedure of the stunt.  He then went to inspect the bus and found that the front windscreen had been removed and a V-shape safety seatbelt had been installed.  However, there was no buckle or holder for the oxygen tank.  Hak Chai explained to him that nobody had given him an oxygen tank beforehand and he did not know what size of the holder that he should make.  There was only one rescue diver standing by instead of four.  The plaintiff also found five to six on dummy passengers in the bus.  They were just roughly tied up on the seats.

8.  Hak Chai then obtained an oxygen tank from the diver and tried to fix it with strings at the left-hand side of the driver’s seat.  He tried several ways but could not fix it firmly as a tank holder could do.  Eventually Hak Chai tied the oxygen tank and regulator with string at the left-hand side of the driver's seat. 

9.  Since the director was urging them to make themselves ready for the shooting of the stunt, he could not object to the three problems of no suitable buckle or holder for the oxygen tank, insufficient rescue divers and presence of dummies in the bus.  When the director gave the “action” signal and urged him to start with the stunt, he drove the bus towards the twin sloping wooden platforms at about 50 km per hour and dashed it into the sea. 

10.  When the bus plunged into the sea, there was plenty of water flushing into the bus.  The oxygen tank got loosened from the string and flew out to the front of the driver’s seat and he could not get hold of the oxygen supply regulator.  He then tried to escape from the bus, but the door and exits were blocked by the dummies.  The front was also blocked by sand and mud in the  seabed.  He then tried to escape through the rear door, but he could not make it because his way was obstructed by the dummies. 

11.  In cross-examination, he was referred to a statement he had made to the Labour Department on 2 August 2001.  He said in the statement that because of the great momentum, the oxygen tank at the side of the driver’s seat dashed forward and hit his left ankle.  There was a qualification inserted at this point of his statement saying that the oxygen tank had only become loosened but had not flown off.  However, he maintained that the tank had already left its original position as otherwise it could not have hit his left ankle.  He also emphasised that he knew that the gas tank was his life.  So he kept an eye on it.  When he saw the tank dashing forward, he knew that it would be disastrous for him.  He also said that he last saw the tank when the bus was about to submerge into water and the tank was then dashing forward.  He tried to catch it but could only touch its bottom.  It then became lost.  I accept his evidence as I find it unthinkable that he would not have grasped the oxygen tank or the pipe if they were still in their original position next to the driver’s seat.  He was at that time tied to his seat by the V-shape seatbelt and there was no reason why he should have failed to use the tank and pipe if they were within reach. 

12.  He also said that the bus continued with the somersault after plunging into water.  After the bus had become stabilized, He unbuckled himself from the seatbelt.  He saw that the bus had its face downward and mud was floating upwards. 

13.  It was also suggested to him that when he was driving the bus, he should have held the oxygen supply pipe in his left-hand so that as soon as he plunged into the sea, he could use the pipe to breathe.  He however said that it was impossible for him to do so as he had to control the steering wheel as well as the gear lever.  If he had to hold on to the supply pipe as well when driving up the platform, there could be deviation from his plan and his performance would be affected. 

14.  It was also put to him that he had not looked for the oxygen tank after unbuckling himself from the seatbelt.  He denied this and maintained that he had tried to look for the tank but failed.

The 1^st defendant’s case

15.  On pleadings, the 1^st defendant has alleged that the plaintiff was employed by the 2^nd defendant, but this point was not pursued at the trial.  Mr. Cheung, counsel for the 1^st defendant, in his final submissions accepted that the plaintiff was an employee of the 1^st defendant. 

16.  The 1^st defendant has taken a number of points to defend this action.  Its defence was re-amended on the first day of the trial.  It has pleaded that the plaintiff should have grasped the oxygen supply pipe in his hand when the bus descended into the sea.  It has also pleaded that the plaintiff should have remained calm, held his breath and spent a few seconds to recover the oxygen supply pipe, but because of his lack of proper training for scuba-divingscuba diving, the plaintiff failed to perform these acts.  It has also raised the defence of volenti nonfit injuria.

Analysis and conclusion

17.  The 1^st defendant engaged Hak Chai to make available the equipment including the bus for the stunt.  The 1^st defendant also left to Hak Chai to provide for the safety measures required for by the plaintiff and the 2^nd defendant.  However, the primary obligation to provide the equipments including safety equipment and to make sure that they would be available for use when needed was with the 1^st defendant.  The 1^st defendant as the employer also had a non-delegable duty to take reasonable care of the plaintiff’s safety at work, it was its duty to make sure that the equipments provided were safe.  Under section 2(3)(a) of the Occupiers Liability Ordinance, Cap. 314, it is also the occupier of the bus. 

18.  The 1^st defendant also does not deny that it has agreed to provide all the safety measures the plaintiff required.  But it left the task to Hak Chai without any supervision.  Little is known about Hak Chai and the 1^st defendant cannot simply delegate its duties completely to Hak Chai.  It is clear that Hak Chai had not secured the oxygen tank firm enough for the purpose of the stunt. 

19.  If the oxygen tank had not been displaced from its position on the left of the driver's seat, it is unthinkable that the plaintiff would not have made use of it as soon as he was in the murky water.  I therefore accept his evidence that the tank with the pipe had dashed out from its original position and had gone missing after he was in the water. 

20.  On the 1^st defendant’s argument that the oxygen tank, given its weight, must have remained near the driver’s seat after the plunge, and it would not have been too difficult for a competent diver to recover it from within the space at the front of the bus.  It is also unthinkable that the plaintiff would not have stretched out his hands to feel for the tank and pipe after he had submerged into the murky water but before the bus had become settled.  However, one should not forget that he was still tied to the driver’s seat by the V-shape seatbelt and he could not have stretched out much to feel for the tank and pipe.  After the bus had settled down, it had already overturned with its bottom facing upwards.  The oxygen tank would have fallen from the bottom of the bus to somewhere else.  Huge quantity of water had also flushed in from the front after the bus had plunged into the sea.  It can be visualized that the tank could have been washed away from the driver’s seat.  The combination of gravity and the flushing of water could have moved the tank and pipe to anywhere inside or outside the bus.  In any case, the plaintiff was seated upside down when the bus had settled.  I accept the plaintiff’s evidence that he did try to locate the tank and pipe when he was still in the driver’s seat but he failed. 

21.  I accept the plaintiff’s evidence that after untying from the seatbelt, he had also look for the oxygen tank but failed.  I think it is a matter of instinct that he would have done so as soon as he was free to do so.  However, if he did not keep on searching for the tank and pipe but instead changed course and tried to swim to the escape door at the rear with a view to rise to the surface, I cannot say that he was negligent.  He knew how much oxygen he had in his lungs and how much time he had to save himself.  In those circumstances, he was the best judge there and then to decide on the best course to take.  It was unfortunate that he was obstructed by the dummies on his way to the escape door. 

22.  On the dummies, there is no dispute that they had not been tested before use.  They were only placed inside the bus on the day of action.  The script required the dummies to be there.  The defendant’s witnesses suggested that the plaintiff should have been aware of the presence of the dummies as one of the purposes of having them there was to add weight to the rear of the bus so that it would not have plunged head down.  But there is no evidence of any calculation having been done to achieve that result.  The plaintiff says that he did not know the presence of the dummies until the day of action.  It is undisputed that there was no dummy when the bus was inspected at Clear Water Bay.  I accept the plaintiff’s evidence that he only knew about the presence of the dummies when he was at the scene of the stunt.  I am of the view that if he was aware of them beforehand, he would have asked for their weight and dimensions and how they were to be secured so that they would not affect his escape. 

23.  The 1^st defendant argued that the dummies were not a cause of the accident and that it was the plaintiff who had swum in the wrong direction.  I cannot agree with this argument.  The bus had plunged head down and caused a lot of sand and mud to float up.  When stabilized, it had overturned with the front top resting on the seabed.  The hole where the front windscreen used to be was close to the sand and mud.  If the plaintiff should have thought that the front was not a way out and decided to try the rear, he was the best judge on that there and then and I cannot say that the decision was a negligent one.  If his decision to swim to the rear cannot be impinged, the dummies were to blame for his failure to get out.

24.  The 1^st defendant also tried to argue that the plaintiff had failed to drive the bus fast enough to cause it to plunge with the rear first or to fall flat on its bottom as originally planned.  If the fall was not with the front first, the 1^st defendant said that the bus would have settled down with its head up or in a horizontal manner and plaintiff could have swum right through the hole at the front.  However, even if accepting that the plan was to plunge rear first or to fall flat on the bottom, the way that the bus would settle still depended on many factors like the waves or current, the strength and direction of the wind and the contour of the seabed.  Nobody can tell how the bus would settle in the end.  This is particularly so when there was no mock trial of the stunt and the shooting was to be done once and for all.  Even if the plan was not to have the bus plunging into the sea head first, the fact that it did plunge that way did not mean that the plaintiff was negligent in executing the stunt.  There were so many unknown factors that could have affected the movement of the bus and it was extremely difficult to control its movement in a precise manner.  Hence, the plaintiff cannot be blamed because the bus had plunged head firstheadfirst.  If the plaintiff could not be blamed for this, the dummies in the bus were a cause for his failure to escape.  If they should not have been there, the plaintiff might well have escaped from the rear.

25.  I also accept the plaintiff’s evidence that he could not have held on to the oxygen supply pipe whilst driving the bus onto the platform and plunging it into the sea.  The stunt required precision of action and sharp focusing of the mind.  It would have been extremely difficult for the plaintiff to execute the stunt by controlling the steering wheel with both hands and the gear lever with his left hand and at the same time holding the supply pipe also in his left hand.

26.  The 1^st defendant has also suggested in submission that the buckle referred to by the plaintiff was not good enough for affixing the tank for the stunt.  This matter was never raised in the pleadings or even in the witness statements and the plaintiff had not been alerted to the need to deal with it.  Hence, the plaintiff has not prepared a case to deal with the attack on the buckle.  I therefore will not consider this argument at all. 

27.  The plaintiff also complained that there was just one rescue diver on standby instead of four.  The 1^st defendant argued that the parties had agreed that it was necessary to have two divers only and that number was sufficient.  There is no evidence that the accident was caused or contributed to by the inadequacy of divers regardless of whether there was in fact one or two divers present.  There is also no evidence that the accident would not have happened or the plaintiff would not have suffered his injuries if there were four divers present.  I do not think the 1^st defendant was negligent in providing just one or two divers on standby.

28.  Finally, I deal with the plea of volenti.  Mr. Cheung did not really push this point.  I also accept the submissions of Mr. Chong, counsel for the defendant.  The whole crew of about 40 persons were there ready to shoot the stunt.  It was unlikely that the 1^st defendant would simply delay the shooting until a suitable buckle or holder was made for the tank as Hak Chai was trying to fasten the tank with strings.  If it was not done on that day and was postponed to another day, additional expenditure ranging between HK$30,000 to HK$100,000 would be required.  If he refused to do it, there was a possibility that the 1^st defendant would pursue him for the wasted expenditure.  Furthermore, the shooting of the stunt was possibly an offence as well because no application had been made to the relevant authority.  Even an application had been made, approval was unlikely to be forthcoming as the stunt involved a flying vehicle.  To delay the shooting to another day would mean to linger this potentially criminal act for a longer period.  There was thus obviously pressure for the plaintiff to execute the stunt on that day.  I find that he was reluctant to execute the act on that day as the buckle for affixing the tank that he had specifically asked for had not been provided.  He knew that he had to rely on the tank when he plunged into the murky water.  I also find that because of the pressure he was in, he decided to take a chance on the firmness of the fixing of the oxygen tank and went ahead with the stunt.  Unfortunately, it turned out that it was not secure enough. 

29.  I also find that there is no evidence to show that he had agreed to waive a claim against the 1^st defendant.  He did not have a free choice that was not under pressure. 

Judgment

30.  In my judgment, the 1^st defendant was negligent in not providing for a firmly secured oxygen tank with oxygen supply regulator for the plaintiff’s use in the stunt as the tank was just loosely tied to the left of the driver’s seat and it flew out from that position and became lost in the course of the stunt.  I also find that the 1^st defendant was negligent in placing dummies inside the bus which obstructed the plaintiff’s escape.  The 1^st defendant should have considered that the plaintiff might have to escape from the front or rear of the bus and, if he should have chosen the rear, the dummies could be in his way. 

31.  For the above reasons, I also find that the 1^st defendant has breached its employer’s duties to the plaintiff as well as the common duty of care owed by it to the plaintiff under the Occupiers Liability Ordinance. 

32.  On the basis of my analysis and conclusions above, I also dismiss any claim of contributory negligence on the plaintiff’s part.  I also find against the 1^st defendant on the plea of volenti nonfit injuria.

33.  I therefore hold the 1^st defendant liable for the plaintiff’s claim and further make an order nisi that the 1^st defendant do pay the plaintiff the costs of this action.