Chan Shek v. Milkway Image (Hong Kong) Ltd
Read the full judgment text of HCPI 295/2006 on BabelCite. This High Court CFI judgment was delivered on 6 October 2009.
1. The plaintiff claims damages for personal injuries sustained by him in an accident which occurred on 22 June 2003 while the plaintiff was in the course of his work being employed by the defendant as a stuntman.
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HCPI 295/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 295 OF 2006 ----------------------------- BETWEEN
------------------------ Before : Hon Suffiad J in Court Dates of Hearing : 25, 26 March and 15-19 December 2008, 6-9 January, 10-13 and 16 February and 6-10 July 2009 Date of Judgment : 6 October 2009 ----------------------- J U D G M E N T ----------------------- 1.The plaintiff claims damages for personal injuries sustained by him in an accident which occurred on 22 June 2003 while the plaintiff was in the course of his work being employed by the defendant as a stuntman. 2.The defendant carries on the business of movie production in Hong Kong. 3.At the material time of the accident, the plaintiff was employed by the defendant as a stuntman. 4.On 22 June 2003, the plaintiff was working on the filming of a movie by the name of “Running on Karma”. The filming took place at the defendant’s studio situated on 6th floor of No. 77 Hung To Road in Kwun Tong. 5.The scene which was being filmed was a very short action sequence. 6.The plaintiff, in his role as a stunt double, had to jump onto a desktop and then immediately jump off the desktop to land on the ground on the left. As soon as the plaintiff was to jump off the desktop, the entire desk would be toppled, just as it was struck by another stunt double chasing after the plaintiff. 7.For the purpose of the filming sequence, the toppling of the desk was brought about by a wiring team and by wires which were attached to the desk. The wires then run upwards to the ceiling of the studio passing through two pulleys attached to the ceiling of the room and then back down to where the wiring team was positioned. When the wiring team pulled on the wire with force, the desk toppled over. 8.Before the actual shooting and filming took place, the plaintiff as well as the other stunt double together with the wiring team had several rehearsals of the action sequence. However, during the rehearsal, while the plaintiff and the other stunt double went through their motions for the action scene, the desk itself was not actually toppled over but at the moment when the desk should have been toppled over by the wiring team, the wiring team would merely shout out that they were going to pull the wires to topple the desk, thereby rehearsing the timing of the toppling of the desk. 9.The rehearsals were completed successfully with nothing untoward happening. 10.When the actual filming of the action scene took place, it had to be retaken for four or five times. The accident to the plaintiff occurred on the last of the retakes. Before the accident took place, nothing untoward happened to the plaintiff on any of the earlier takes and the plaintiff was able to successfully jump onto the desktop as well as successfully jumping off the desktop onto the floor without losing his balance. During the actual shooting of the four or five retakes, the desk was actually toppled by the wiring team, but that after each occasion, because there had to be a retake, the desk had to be reset again for the next retake. The accident 11.During the last retake of the fight scene, when the plaintiff attempted to jump off from the desktop to land on the floor, the plaintiff lost his balance and fell to the ground, fractured and dislocated his left wrist and also dislocated his left elbow (“the accident”). 12.After the accident and due to the severity of his injuries, the plaintiff was taken to hospital in one of the defendant’s company car. The plaintiff’s case on liability 13.The primary case of the plaintiff on liability was that the cause of the accident was due to the wiring team, also being employees of the defendant, being negligent in that they had pulled on the wires much too early when toppling the desk. The wires were pulled before the plaintiff had properly and securely landed his foot on the desktop and therefore before the plaintiff could get a proper foothold on the desktop to jump off from the desk onto the floor. This premature pulling of the wires had therefore caused the plaintiff to lose his balance when jumping off from the desktop onto the floor and resulted in the plaintiff having to try to break his fall by stretching out his left hand and thereby causing the injuries to his left wrist and left elbow. 14.It was the evidence of the plaintiff that when actual shooting began, there had to be a number of retakes. The reason for that was that the other stunt double had come into camera range too late and was told each time for the retake that he had to come in earlier. 15.It was also the plaintiff’s evidence that in all the earlier retakes, before the last one in which the accident happened, he was able to jump onto the desktop and from the desktop to jump onto the floor landing successfully on his feet without any problem. 16.However, when it came to the final shoot in which the accident occurred, it was the plaintiff’s evidence that when he made the jump onto the desktop, even before his feet had touched the top of the desk, the wiring team had already pulled the wire to topple the desk. This premature toppling of the desk caused the desk to hit his feet when he was still in mid-air, before he had landed on the desktop, and caused him to lose his balance. As a result, he fell backwards and had to stretch out his left hand behind him to break his fall. Ultimately, his left hand landed on the rail which was used for Camera B (being a camera mounted on a trolley along rails) even before his feet touched the ground. That landing on his left hand caused him such severe pain that he broke out in a cold sweat. 17.Others at the scene seeing that he had fallen, all came up to him to ask if he had injured himself. 18.Ultimately, he was taken to hospital in a company’s car of the defendant. 19.It was also alleged by the plaintiff that there should have been, as a safety measure, a mattress placed on that part of the floor onto which the plaintiff would land after jumping off from the top of the table. The effect of the mattress would be to cushion the effect of the plaintiff having to jump off the table top and landing on the floor. Had there been such a mattress placed on the floor, the injuries of the plaintiff could have been avoided or lessened. 20.In this respect, the plaintiff’s evidence was that during the rehearsals, there was a thick mattress (described by the plaintiff as a “tatami”) placed at the spot on the floor where he would land after jumping off from the desktop. That spot where the mattress was placed also happened to be part of the rails on which the Camera B would start filming from. 21.However, when it came to the actual shooting, because Camera B had to start shooting from that spot, the mattress was removed from the floor being where the plaintiff would ultimately land after jumping off from the desktop. 22.The plaintiff was quite adamant that he did not request the mattress to be removed from that spot. 23.The plaintiff also acknowledged that during all the earlier retakes in the actual filming but before the accident happened, he was able to land on the floor properly even without the mattress being in place. The defence case 24.The defendant denies any negligence on its part or the part of its servants or agents including the wiring team. 25.The defence case was that all who were involved in the stunt sequence being filmed had been properly and sufficiently instructed as to their co-ordination for the stunt, the subject matter of the shoot when this accident occurred. 26.The defence also say that the timing of the wiring team pulling the wire to topple the table when the accident occurred was proper, correct and was no different from the stunt sequence which was ultimately filmed for use in the movie itself, albeit that a different stuntman (other than the plaintiff) had to be engaged on a later day to finish the filming after the plaintiff was injured. 27.The defendant further attributed the accident to the plaintiff’s own carelessness in not properly adhering to the instructions given to him when co-ordinating this stunt sequence and when performing it at the time of the accident. 28.On such pleading the defendant also rely on the contributory negligence of the plaintiff. 29.The defendant further alleged that the absence of any mattress on that part of the floor which the plaintiff would land after jumping off the desktop was due to the plaintiff requesting for such mattress (which was originally there during the rehearsals) to be taken away, albeit that the defendant was at all times ready to have such a mattress placed there as a safety measure for the benefit of the plaintiff. 30.The defendant also disputed the evidence of the plaintiff that there were two cameras being used in the filming of this action sequence. It is the defence case that there was only one camera in the room during the filming and it was a hand held camera with no second camera set on trolley on rails whether being used or just set up in the room. Factual issues in dispute 31.From the above, it can already be seen that the main factual issues in dispute between the parties are as follows :
32.There are also a number of subsidiary factual issues in dispute between the parties. 33.These subsidiary issues arise either because they have some bearing on the main issues in dispute (such as the contents of the Form 2 and the amended Form 2) or they arise from an extract taken from the final product in the film “Running on Karma” in which the same stunt for which the plaintiff was engaged was performed by another stuntman on another day some time after the accident to the plaintiff. However that final product had been subject to editing and/or cutting but was produced in evidence by the plaintiff to give a ‘flavour’ as to what was involved in the filming when the accident occurred. 34.The extract from the final product of the film showed the following. 35.The studio was arranged to represent a small office with a door opening into it. Actor A (playing the part of an Indian without a beard) from inside the office opens the door to find Actor B (another Indian with a long beard) standing outside the door of the office. Actor B, holding a basket in his hand, hurls the basket through the open door at Actor A who dodges the basket. The basket lands on the wall of the office behind Actor A. Actor A then kicks Actor B on his abdomen. After kicking Actor B, Actor A turns around and jumps onto the top of a desk inside the office with Actor B, the attacker, pursuing him into the office. The desk then topples over, and while the extract from the final product does not actually show the desk toppling over, the effect of that can be seen by sheets of paper (originally on the desk) flying all over the air after Actor A leaps off the desktop leaving a footprint on the desk surface. The scene then changes to show Actor A being pursued in the room and ultimately Actor A dives through a glass window in the partition (shattering the glass in the process of his dive) in an attempt to escape. 36.This extract from the final product has given rise to further factual issues in dispute as follows. 37.Firstly, the plaintiff says that it can be seen from the extract that there is an L-shaped screen which runs along the front and left side of the desk (onto which the plaintiff jumped during the accident) in the extract. 38.The defendant denies that there was ever such an L-shaped screen on the desk onto which the plaintiff jumped at the time of the accident. 39.It is the defendant’s case that what the plaintiff says appears to be the L-shaped screen on the desktop in the extract from the final production is in fact a screen standing on the ground and which was used to prop up the wall partition in that room. 40.Secondly, the plaintiff alleges that the person shown in the extract of the final production kicking at the abdomen of the Indian actor with a beard standing at the doorway was the plaintiff himself. 41.The defence case is that the person delivering the kick was in fact the actual Indian actor in the movie and not a stunt double, and definitely not the plaintiff himself. It is also the defence case that no part of that extract from the final production was filmed on the night when the accident to the plaintiff occurred. 42.A further issue in dispute arose from the fact that the actual NG (No Good) take which was shot when the accident to the plaintiff happened was not produced in evidence by the defendant and has never been made available, despite the fact that it would have been the best evidence recorded on film as to how the accident happened. The failure to make available that NG take has also led to the further factual dispute between the parties as to whether or not the defendant could and should have produced the NG take showing how the accident to the plaintiff came about. Finding of facts in respect of the subsidiary issues 43.I shall make finding of facts on the subsidiary issues first since they will ultimately have a bearing on the main issues in dispute. (i) L-shaped screen on the desktop 44.The evidence of this came from the plaintiff alone. It was his evidence that at the time of the accident, there was an L-shaped screen along the front and left side of the desktop onto which he had to jump. 45.On the other hand, all of the witnesses called by the defence who were present at the time of the filming and when the accident happened denied that there was any such screen placed on the desktop. 46.Having considered the rest of the evidence relating to this issue, I am not disposed to accepting the evidence of the plaintiff for the following reasons. 47.Firstly, when asked the purpose for which that L-shaped screen was placed on the desktop, the plaintiff was unable to give any explanation at all as to why there should be such a screen placed on the desktop. 48.Indeed it is strange to say the least for such a screen to be placed there as alleged by the plaintiff, since its effect could only be to obstruct the proper filming of the plaintiff’s foot jumping and landing onto the desktop and jumping off from it when that was what was intended to be shot. 49.Secondly, such an allegation was never made by the plaintiff prior to his Statement of Claim. 50.Long before the Statement of Claim was even drafted, the plaintiff had told his employers how the accident happened and what the plaintiff said as to the accident happening was put down on the Form 2 by Chan Wing Sai. 51.I have no hesitation in accepting her evidence that the plaintiff had never mentioned about any screen on top of the desk but only told her that the height of the desk was about 0.6 metre high and that was what was recorded in the Form 2 as being the height from which the plaintiff fell. I accept that evidence of Chan Wing Sai because in the Form 2 it was also stated that the accident to the plaintiff was caused by the pre-mature toppling of the desk. That allegation could only have come from the plaintiff which is what he now alleges. 52.On the other hand, I have also taken note of the discrepancy in the defence case that when the plaintiff pointed out, during his cross-examination by defence counsel, that the L-shaped screen could be seen on the extract from the final product, and indeed pointed out what appeared in that extract to be the top of a screen when Actor A was delivering the kick to Actor B at the doorway, counsel for the defendant took on-the-spot instructions from one of his witness (the cameraman Cheng Siu Keung) after which it was put to the plaintiff that what was shown was not a screen but the wall skirting. 53.Subsequently, the defence acknowledged that what had been put on instructions to the plaintiff about it being a wall skirting was erroneous and that the later evidence of Cheng was that what was shown in the extract of the final product was indeed a screen but which was standing on the ground and was used to prop up the wall partition. In this respect, it was also the defence case that that part of the extract referred to was shot not on the day of the accident, but on an earlier occasion with the actual actor in the film and not the plaintiff himself as a stunt double. 54.I accept that a mistake had been made by the defence witness because they were somewhat taken by surprise by the suddenness of what happened, namely that without forewarning the plaintiff suddenly said in court when being cross examined that the L-shaped screen could be seen on the extract from the final product, thereby giving the defendant insufficient time to properly consider and take instructions on that point. (ii) Whether it was plaintiff in the extract from the final product 55.It is the plaintiff’s evidence that the person in the final product delivering a kick to the abdomen of the Indian actor at the doorway was the plaintiff himself and that very same shot also showed the top of the L-shaped screen. 56.The defendant’s evidence on this disputed fact was that the shot in the final product showing the kick to the Indian at the door was made by the Indian actor and not a stunt double or the plaintiff. 57.It is also the evidence from the defendant that that shot was made at an earlier date than the date of the accident when the plaintiff was not engaged at the set as a stunt double. 58.The only relevance that I can see of this disputed fact is its relation to whether there was an L-shaped screen on the desk. This disputed fact on its own has no relevance to the issue of liability. 59.Having found against the plaintiff’s evidence on the L-shaped screen, I have no hesitation in finding against the plaintiff on this issue. I accept the defendant’s evidence on this disputed issue that the shot was made, not on the day of the accident, but on an earlier date. 60.It would appear that the plaintiff has given this evidence on this issue only for the purpose of bolstering up his evidence as to the L-shaped screen. Finding of facts on the other disputed issues 61.I turn now to deal with the other more important disputed factual issues between the parties. 62.This relates to whether there was a second camera set mounted on a trolley which was running on rail in the room during the shooting on the night when the accident to the plaintiff occurred and also how the safety mattress came to be removed at the time of the accident. 63.Although they are two different issues, they are nevertheless related in that it was the plaintiff’s evidence that the safety mattress (which was placed on top of the rails during the rehearsals) had to be removed because the second camera mounted on rail had to be engaged during the actual shooting and the rail had to be free from the mattress covering over it. 64.Dealing first with whether there was a second set of camera which was on a trolley mounted on rails inside the room where the shooting was to be carried out. 65.The evidence comes from the plaintiff alone that there was a second camera mounted on rail in the room. 66.However, the plaintiff’s evidence does not identify either the camera-man operating this second camera alleged to be set on a trolley on rails, nor for that matter any other person engaged to assist in the operation of this second camera. 67.On the other hand, all the witnesses of the defendant who were in the room during the shooting on the night of the accident, namely, both Yuen Bun as well as Cheng Siu Keung attested to the fact that there was only one set of hand-held camera used at the material time and that there were no rails set up inside the room although rails were available inside those studio premises. 68.The documentary evidence produced by the defendant, which is a complete name list of all the persons engaged in the shooting on the night of the accident, showed that there was only one cameraman engaged, namely Cheng Siu Keung. There was no other cameraman named in that name list. That was a name list based on which the various workers on the set engaged that night in the shooting would be paid. 69.Apart from Cheng Siu Keung, being the cameraman, there were also four “grips” engaged during the shooting that night. They would assist Cheng in the operation of the camera and also the loading of the film in between shoots. 70.It was submitted by the plaintiff that since there were five persons in fact engaged with the camera operation, that would be sufficient personnel to operate two cameras instead of just one. 71.I do not accept that contention for the simple reason that only one cameraman was denoted as being such on the name list. If two sets of cameras were being operated during the shooting, there would need to be two cameramen specifically named on the list. A cameraman has to have special skills in operating a camera. I cannot accept the plaintiff’s submission that any one of the other assistants or “grips” could just stand in as a cameraman on the set during the shooting. 72.Based on the documentary evidence which showed that only one cameraman was engaged for the shooting that night, I do not accept the evidence of the plaintiff, but instead prefer the evidence of the defendant, which that documentary evidence support. 73.Having made the finding above that there was only one set of camera being operated at the time of the accident, and that there was no rail set up either in the room, this finding is intrinsically linked with the factual dispute as to how the safety mattress came to be taken away after the rehearsals since by that finding, it must follow that the factual basis upon which the reason alleged by the plaintiff for the removal of the safety mattress no longer exists. Accordingly, I must also reject that part of the plaintiff’s evidence. 74.Therefore the only reason left in the evidence as to how the safety mattress came to be removed after the rehearsals is that given by the defendant, namely that it was upon the request of the plaintiff. 75.I accept that evidence of the defendant. It is not difficult to see the reason why the plaintiff would have asked for the mattress to be removed after the rehearsals since the stunt was a simple one and after rehearsing it for several times, it must have become clear to the plaintiff that it was not necessary to use a safety mattress for the performance of that stunt. 76.I am further of the view that the only reason why the plaintiff came up with the story that there was a second set of camera mounted on a trolley on rails was to provide a basis in an attempt to explain why the safety mattress was removed but without admitting that it was done at his behest. Finding of facts as to how the accident occurred 77.In making findings on this main issue in dispute, I note a few preliminary matters. 78.The plaintiff was an experienced stuntman with a number of years of experience in this field. The stunt which he was to perform was a simple one, to the extent that he decided it was not necessary for a safety mattress to be used for his landing. Moreover, during all the rehearsals, nothing untoward happened. 79.The above matters are to be contrasted with the fact that when the accident happened it resulted in the plaintiff sustaining some serious injuries, namely the fracture and dislocation of his left wrist as well as the dislocation of his left elbow. 80.That the accident could result in such serious injuries to the plaintiff would suggest that something went seriously wrong in that last retake when the accident happened. 81.It was the plaintiff’s evidence that what went seriously wrong in that last retake was the pre-mature toppling of the desk by the wire team. That pre-mature toppling of the desk resulted in the plaintiff missing his foothold on the desktop to properly jump off from the desktop onto the ground on the left side of the desk. It also caused some part of the desk, when it was being toppled, to strike the leg of the plaintiff and cause him to lose his balance in mid-air such that when the plaintiff landed on the ground, it was not his feet which landed first on the ground, but his body, and therefore he had to stretch out his left hand to break his fall, resulting in the fracture and dislocation to his left wrist and the dislocation of his left elbow. 82.That description given by the plaintiff as to how the accident occurred and how those serious injuries sustained by him is logical, reasonable and makes sense. 83.On the other hand, there is no evidence from any witness called by the defendant as to how the accident occurred, save that they concede that the plaintiff did suffer those injuries in the accident. 84.Neither Yuen Bun nor Cheng Siu Keung, both of whom were present during the shooting, albeit that Yuen Bun was viewing the shooting on a screen in an outside room, could say how the accident came about. Nor was any one from the wire crew engaged on the night of the accident called to given evidence for the defendant as to how the accident came about. 85.In the absence of any such evidence, the only account given is that given by the plaintiff. 86.Despite the lack of evidence from the defendant to challenge the evidence of the plaintiff as to how the accident happened, the defendant does not admit the accident to have happened in the way described by the plaintiff. 87.The defendant dispute that the desk was toppled pre-maturely. However, given what is contained in the Form 2 which was submitted to the Labour Department by the defendant and signed by its representative and in which it was admitted by the defendant that the table was toppled pre-maturely thereby giving rise to the accident to the plaintiff, it is not now open to the defendant to deny this. Even if the happening of the accident was as told to the defendant or its representative by the plaintiff, the fact that the defendant (or its agent) has seen fit to adopt what was told it by the plaintiff and to have reported that to the Labour Department in the Form 2 as to how the accident came about, the defendant is bound by such admission on its part. 88.A further aspect of the evidence which I need to consider in this respect is the absence of the NG take which would have recorded on film the actual accident itself. 89.In this connection, it was the evidence of Chu Shuk Yee, the production manager of the defendant that the film of the NG take when the accident happened would have been available to the defendant up to the end of 2003 and also possibly in the early part of 2004 if during that period of time the defendant had wanted to obtain it from the film processor, but that it was not obtained by the defendant because she had no knowledge of the allegations made by the plaintiff that the accident occurred due to the pre-mature toppling of the desk. She further added in her evidence that had she known of such an allegation by the plaintiff, she would have obtained the NG take as evidence. 90.That evidence of hers was contradicted by the evidence of Chan Wing Sai, the production assistant employed by the defendant up to July 2004 whose evidence was to the effect that not only had she given a copy of the Form 2 to Chu Shuk Yee (which contained the allegation by the plaintiff as to the accident occurring due to the pre-mature toppling of the desk) after it was prepared and sent to the Labour Department, but also that Chu Shuk Yee was aware of the allegation by the plaintiff as to how the accident occurred. 91.I have no hesitation in accepting the evidence of Chan Wing Sai over that of Chu Shuk Yee. There can be no apparent reason for Chan to have given any untrue account of that part of the evidence referred to above, but every reason for Chu Shuk Yee not to give a full or correct picture in order to explain the absence of the NG take shot when the accident occurred. 92.Accordingly, I find that there was no good or sufficient reason for the defendant not to have made available the NG take, which would likely have been the best evidence as to how the accident occurred. 93.The failure of the defendant to make available that piece of evidence allows the court to draw an adverse inference against the defendant as to what that NG film would have shown had it been made available. 94.Given all the circumstances in this case, I do draw that adverse inference against the defendant. 95.That coupled with the evidence of the plaintiff leads me to make the finding that I accept the evidence given by the plaintiff as to how the accident occurred in this case, namely that it was due to the pre-mature toppling of the desk by the wiring team. Causation 96.It is necessary for me to go into the question as to the cause of the accident. 97.On the facts as found by me above, there can be little doubt that the only cause of the accident was due to the pre-mature toppling of the desk. 98.As for the removal of the safety mattress, given the evidence in this case, I do not view the removal of the safety mattress to be a cause of the accident — not even a secondary cause. The reason being that if there had been no pre-mature toppling of the desk, the absence of the safety mattress would have been of no significance as can be seen from the earlier takes before the accident happened. The absence of the safety mattress therefore did not cause the accident to happen. Liability 99.Both the director as well as the wiring team owed a duty of care to the plaintiff not to do anything which would cause injury to the plaintiff. 100.It must have been readily apparent to all concerned that if the desk was prematurely toppled, that would cause the plaintiff to lose his foothold on the desktop and/or lead to the plaintiff losing his balance thereby falling to the ground. 101.Accordingly, the wiring team had a duty to ensure that the desk was not toppled before the plaintiff had landed on it and also had jumped off the desktop. To topple the desk at a time before the plaintiff could jump off from the desktop would be in breach of the duty owed to the plaintiff. 102.Indeed when the rehearsals were carried out the major reason for the rehearsals must have been to ensure proper timing by the wiring team in toppling the desk. 103.Whether the fault laid with the wiring team in that their timing was off at the time the accident happened, or whether the fault was that of the director in urging the wiring team to be quicker in toppling the desk, the defendant will still be vicariously liable to the plaintiff for such negligence. 104.Therefore on the findings made above, I find the defendant to be liable to the plaintiff for this accident. Contributory negligence 105.The only possibility of contributory negligence arising comes from the finding above that the safety mattress was removed at the request of the plaintiff. 106.I take the view that apart from that one aspect involving the safety mattress, there can be no question of contributory negligence because the plaintiff himself had absolutely no control over the toppling of the desk. That was a task left to the wiring team to carry out and in that sense the plaintiff was totally in the hands of the wiring team in so far as timing goes. The wiring team had to take their cue from the plaintiff successfully jumping off the desktop before they should topple the desk. 107.Contributory negligence is based on fault, namely some fault on the part of the plaintiff himself. 108.The question then to ask in this case was whether the plaintiff was himself at fault when he asked for the safety mattress to be removed. 109.If that request of the plaintiff was made at the very outset for the removal of the mattress, even before any rehearsals had been carried out, then there may have been some contributory negligence on the part of the plaintiff as that would clearly be reckless. 110.However, in this case, it was admitted by the defendant that the safety mattress was only removed after all the rehearsals had been carried out. 111.In those circumstances, I take the view that it was not unreasonable for the plaintiff to have made that request to remove the mattress after all the rehearsals had been carried out and nothing untoward had happened. 112.After all, as it was acknowledged by all, the stunt that was involved in this case was not a difficult one to be carried out by an experienced stuntman like the plaintiff. 113.After the rehearsals, the plaintiff must have found that it was not difficult for him to land on his feet and there was little risk in not having a safety mattress on the spot where he landed. 114.What was not apparent to the plaintiff was that the timing of the wiring team would go awry in that final take when the accident occurred such that the desk would be toppled prematurely. 115.This was not something which the plaintiff could have foreseen since the track record from all the rehearsals showed that the stunt and the timing was executed properly and with precision during all the rehearsals, and even all of the NG takes prior to the accident. 116.Even if the plaintiff could be said to be at fault with hindsight of all that happened, such fault of the plaintiff would only be de minimis given that the premature toppling of the desk could not have been in his contemplation. 117.Accordingly, and for the reasons given, I am not prepared to hold that the plaintiff was to any extent to blame for the accident. 118.I therefore do not find any contributory negligence on the plaintiff for this accident. QUANTUM Injuries and Treatment 119.After the accident, the plaintiff was taken to the Accident and Emergency Department (“A&E”) of United Christian Hospital (“UCH”) and was diagnosed to have suffered a fracture dislocation of his left mid carpal bone (wrist bone) and dislocation of his left elbow. 120.Close reduction of his left elbow was performed at the A&E of UCH and the plaintiff was admitted to the Department of Orthopaedics & Traumatology of UCH where close reduction of his fractured left wrist was carried out. 121.On 25 June 2003, open reduction for the fractured left wrist was performed and the wrist was treated with K-wire fixation and cast immobilization. 122.The plaintiff was discharged from UCH on 27 June 2003 after a stay of some 6 days. 123.On 9 July 2003 the plaintiff was re-admitted to UCH for one day to remove the stitches and to change the cast on his left wrist. 124.On 19 August 2003 the plaintiff again admitted to UCH to remove the cast and K-wires, and a resting splint for the left wrist was provided. 125.The plaintiff underwent 2 sessions of physiotherapy in July 2003 and 2 sessions of occupational therapy in July and September 2003 at UCH. 126.The plaintiff was transferred to Tuen Mun Hospital (“TMH”) where he received 15 sessions of physiotherapy and 1 session of occupational therapy between August and December 2003. 127.In February 2004 the plaintiff was referred back to UCH for work assessment and rehabilitation. Examination carried out on 25 February 2004 showed his wrist flexion and extension were both 60º and the plaintiff was able to perform supination and pronation in full. However, the range of motion on his left wrist was 10º motion on radial deviation as opposed to a normal range of 15º. Similarly the motion was also noted to be 20º on ulnar deviation as opposed to a normal range of 35º. 128.The pain intensity of the plaintiff’s left wrist was also measured at 7-8 out of 10 on the Visual Analogue Scale and the power grip of the plaintiff’s left hand was registered at only 25 kgf whereas it was 52 kgf for his right hand, the plaintiff being right handed. 129.The plaintiff made 4 visits to the physiotherapy department of UCH after his transfer back to UCH in February 2004 but defaulted his treatment after the session on 3 March 2004. 130.Likewise the plaintiff did not continue with his occupational therapy session at UCH after 4 March 2004. 131.When last seen at the Orthopaedic and Traumatology Department of UCH as an outpatient on 27 April 2004 some stiffness and pain over his left wrist was still noted, but thereafter the plaintiff defaulted on further follow up appointments. Joint Medical report by experts 132.The plaintiff was jointly examined by Dr Jack Wong and Dr Lee Po Chin. 133.In their joint medical report dated 22 January both experts agreed that the injuries of the plaintiff were compatible with the circumstances of the accident and were not pre-existing injuries. 134.Their examination of the left elbow revealed slightly restricted flexion and pronation. For the left wrist joint, there were still some pain, tenderness, stiffness, weakness, and scar formation. There was left arm and forearm muscle wasting by about 1 cm each with weakness of the left upper limb muscles. 135.X-ray showed well-aligned left elbow and wrist joints. There was non-union of the left medial epicondylar and ulnar styloid process fracture. There was also calcification of inter carpal soft tissue. 136.Dr Wong opined that the symptoms are genuine and Dr Lee agreed that the dislocation of the left elbow and left wrist had left residual stiffness. However, both the left elbow and left wrist retained a satisfactory functional range of movements. There was also some residual pain but no post traumatic arthritis of the left elbow and wrist. The residual pain should be mild and the plaintiff should have made a good recovery of his left elbow and left wrist function. 137.Both experts agree that the conditions had attained their maximal medical recovery and such residual problems as remained will be permanent. Dr Wong opined that the plaintiff will continue to suffer from residual left elbow an wrist joint pain, stiffness and weakness. Dr Lee takes the view that the plaintiff will mainly have residual stiffness with mild pain. 138.Both experts agree that the plaintiff should be able to resume his pre-accident occupation as a martial arts performer. Dr Wong says that the plaintiff will have reduced capacity and efficiency as well as difficulty with duties that demand left upper limb power and mobility, such as pulling, pushing, lifting or moving heavy objects or supporting his body with the left upper limb; and should be exempted from such duties. 139.Dr Lee agrees that there will be impairment of work efficiency if his left upper limb alone is called upon to exert heavily and the plaintiff need to exercise care when performing these tasks. There will be mild reduction in work efficiency and will experience pain and discomfort after prolonged left upper limb exertion. He should be allowed to rest at intervals to relieve pain. 140.Both experts agree that the sick leave to the plaintiff from 22 June 2003 to 25 May 2004 was appropriate. 141.The experts also agree that the plaintiff suffers from 9% upper extremity impairment which is equivalent to 5% whole person impairment. Pain Suffering and Loss of Amenities 142.From the medical evidence before me, in particular the evidence from the experts, it cannot be doubted that the plaintiff had made a good recovery from his injuries by around March 2004, albeit that some residual pain and stiffness still remained in his left wrist and elbow. 143.The fact that he had by and large recovered from his injuries some time in March 2004 is supported by the fact that the plaintiff himself saw fit to default on his physiotherapy and occupational therapy sessions around that time as well as by the fact that his sick leave was terminated in May 2004. 144.Moreover, the plaintiff told his occupational therapist that his condition had stabilized by February 2004 and he could resume simple parts of his job. 145.Indeed by the summer of 2004 the plaintiff was able to resume as a martial arts performer, assistant martial arts director and wireman. 146.In the circumstances and given the medical evidence of which there was little dispute between the experts, the plaintiff’s injuries would be below the “serious” category as it is understood in the case of Lee Ting Lam. 147.Those injuries on its own would usually be compensated for under this head of claim by an award ranging from between $150,000 to $250,000 using the local awards cited to me by both counsel in their final submission. 148.However, it was also submitted by counsel for the plaintiff that I should also consider a further aspect in relation to this plaintiff which comes within “loss of amenities”, namely, that the plaintiff in this case had all along set out to make a career of being a stuntman and with the aim to advancing in time to becoming a martial arts director himself. 149.Furthermore, given the background of the plaintiff, being a stuntman and martial arts performer was the only career open to him. 150.The plaintiff also derived great satisfaction from his work as he liked being in the limelight and being cheered by others when he was able to successfully perform a difficult stunt. 151.The suggestion by counsel for the plaintiff that a separate award for loss of congenial employment should be considered in this case is not something which appealed to me for the simple reason that not only did the medical evidence showed that the plaintiff was able to resume his pre-accident job, albeit with some restriction, but also that the plaintiff has resumed his pre-accident job since the summer of 2004. 152.Accordingly, taking into account this further loss of amenities on the part of the plaintiff, I will use the higher range in assessing the quantum under this head of damage which is $250,000. Loss of pre-trial earnings 153.In so far as this head of claim is concerned, there is no dispute that the plaintiff was given sick leave from 22 June 2003 until 25 May 2004, some 11 months. 154.After the sick leave period, the period up to the end of trial and/or judgment consists of a further 63 months. 155.The two main issue in dispute are, firstly, the pre-trial earnings of the plaintiff and secondly, what were the plaintiff’s actual earnings for the rest of the pre-trial period. 156.A considerable amount of evidence had been gone into during the trial concerning those two matters resulting in each of the parties preparing tables dealing with the plaintiff’s earnings which is based on the plaintiff’s bank accounts, his travel documents and immigration record, as well as his own evidence in court and from the interrogatories administered before trial. Such tables span from some 2 years before the accident (to deal with his pre-accident earnings) all the way up to November 2008. 157.The difficulty with the evidence stems from the fact that the plaintiff works as a freelance stuntman, not working at any fixed salary for any one employer, and at times being paid in cash which has little or no documentary support by way of evidence, and coupled with the fact that the plaintiff was unable to remember how a number of deposits in his bank account came about or what those deposits relate to. (a) Plaintiff’s contention 158.From these tables prepared by the plaintiff, the plaintiff’s case in a nutshell is that his bank statements for the 2 years preceding the accident shows his earnings to be at least $40,324 per month. 159.The plaintiff further concedes that for the latter part of his sick leave period, he was able to earn around $20,000 of income as a stunt instructor, therefore his loss of earnings for the 11 months of sick leave should be assessed at ($40,324 x 11 months - $20,000) giving $423,564, with loss of MPF thereon being a further 5% of that figure giving $21,178. 160.As for the remainder of the pre-trial period, the plaintiff submits that the average earnings of the plaintiff shown for the 43 months up to the end of 2007 (plaintiff declined to use the earnings in 2008 since it was common ground that there was a general downturn in the film industry due to the Olympics being held in China which was, therefore, unrelated to the accident) came to $24,784 per month which showed that the plaintiff suffered a partial loss of earnings of $15,540 per month ($40,324 - $24,784). For the 63 months, this would come to $979,020. Loss of MPF thereon comes to $$48,951. 161.Totally, therefore, the plaintiff claims $1,472,713. (b) Defendant’s contention 162.The defendant’s suggested assessment is as follows. 163.Based on the defendant’s own calculations and the defendant’s own tables, it was submitted that the average earnings of the plaintiff calculated on the 2 years immediately prior to the accident is shown to be between $28,500 (rounded off and discounting the “untraceable” deposits) and $35,000 (rounded off and assuming the “untraceable” deposits to be also income). Therefore taking a mean, the defendant puts the pre-accident earnings of the plaintiff at $31,500. 164.Based on their own estimates of the plaintiff’s earnings (which in turn is based on the travel records of the plaintiff when working outside Hong Kong), the defendant comes up with the calculation that the plaintiff was earning on average $38,133.09 per month for the 43 months up to the end of December 2007. Once again the earnings for 2008 was not relied upon by the defendant for the same reason as the plaintiff. 165.From these figures, the defendant submits that there was no loss of earnings by the plaintiff after expiry of the sick leave. 166.As for the sick leave period, the defendant, pointing at the travel record of the plaintiff which showed that the plaintiff had travelled out of Hong Kong on 7 August 2003 for some 12 days being in China, and again for a further 9 days from 21 August 2003, (which was during the sick leave period) submitted that the plaintiff must have been working in China during this time. Therefore, the submission goes, since the plaintiff was able to resume work as early as 7 August 2003, his only loss of earnings would be for about 2 months after the accident. 167.Accordingly, the defendant says that the plaintiff was entitled to at most $63,000 being 2 months loss of earnings. 168.The alternative case of the defendant, based on the travel records of the plaintiff outside of Hong Kong during the sick leave period, which the defendant assumes as being for work performed outside of Hong Kong and assigning to it the rate of remuneration either suggested and recommended by the Stuntmen’s Association in respect of overseas work (being 1.5 times the daily rate for work in Hong Kong which is $1,400 per day) or which in the past had been received by the plaintiff working overseas, came up with the estimate that the plaintiff should have been earning on average some $12,400 per month during the 11 months sick leave period. 169.On that basis, the defendant’s alternative case is to assess damages during the 11 months sick leave at totally $210,000 calculated from ($31,500 - $12,400) x 11. (c) Findings 170.Much of the evidence relating to loss of earnings come from the plaintiff himself. However, the plaintiff’s evidence has not been at all satisfactory, but much of it has been shown to be unreliable. As a result, the plaintiff’s credibility has been greatly affected. 171.Firstly, many of the answers given by the plaintiff on the interrogatories administered by the defendant have been shown to be either wrong or unreliable from the bank documents and travel documents of the plaintiff discovered subsequent to those answers. 172.In one instance, the plaintiff had claimed a sum of over $79,000 to being income he had received from Dogwood Productions which was during the 2 years before the accident, but from the later discovery made, this amount was shown to be obtained from a mortgage loan and was not income. 173.On another occasion, the plaintiff claimed to have been engaged in working in Luxembourg, again during the two years before his accident, but from his travel document later discovered, he could not show any record of having entered Luxembourg. 174.These are just some of the examples of the unreliableness of the plaintiff’s evidence and the inference must be that the plaintiff was attempting to play up and exaggerate the amount of his pre-accident earnings. 175.As for the period after the accident, including the sick leave period, initially, the plaintiff did not admit to having worked overseas after the accident until he was confronted with the evidence from the travel documents and his immigration record. 176.Those travel records showed that the plaintiff was in China during his sick leave period as early as 7to 18 August 2003, and also for a further 9 days as from 21 August 2003. 177.His travel records also showed that the plaintiff was in Singapore for some 41 days, from 12 March to 21 April 2004. The plaintiff initially said he was there for pleasure, but was confronted with the fact that the visa for being in Singapore was arranged by Media Corp Studio and which indicated that the plaintiff was there in Singapore as a “stunt trainer”. This evidence therefore greatly affected the plaintiff’s credibility as to his claim that for that 41 days in Singapore, he only received $10,000 as “lai see”. 178.Furthermore, after the sick leave period, documentary evidence relating to the plaintiff working in the movie entitled The Myth between mid-June and September 2004 showed that the plaintiff was paid totally $134,663 in 4 instalments by 4 cheques yet the plaintiff was unable to show from any of the bank documents discovered by him as to where these 4 cheques had been deposited, nor could the plaintiff give any satisfactory explanation for that. 179.Another piece of evidence which shows up the plaintiff’s unreliability was that in his evidence initially, the suggestion by the plaintiff was that three of his trips made to Singapore in 2004 and 2005 were all for work. However, when cross-examined, the plaintiff changed to say that those trips to Singapore were either “for fun” or “partly for fun and only partly for work”. Yet it was acknowledged by the plaintiff that he was put up in a hotel and all his hotel expenses were paid by his employer. 180.The long and short of the matter quite clearly showed that the plaintiff was trying to downplay the amount of his income which he could make during the period between the accident and trial including the sick leave period. 181.Indeed, the late discovery by the plaintiff of his bank documents and the travel records and travel documents had already caused the plaintiff to downgrade the amount of his claim from what was pleaded in the original Revised Statement of Damages. 182.Given the aforesaid, I find that the plaintiff’s pre-accident income was not as high as the figure of $40,000 suggested by the plaintiff, but also somewhat higher than the figure of about $30,000 as suggested by the defendant. 183.This can be measured against the suggested amount of $1,400 daily wage recommended by the Stuntmen Association. Even accepting that a stuntman is a freelancer and may not always be working everyday in a given month, that has to be offset by the fact that on occasions a stuntman when acting as a stunt double, though not a frequent occurrence, can earn $2,800 for that day working as a stunt double. I also take into account that since 2003 there was a slump in the local filming industry as a result of which those in the industry began to look to overseas for work. Working overseas generally will bring in a slightly higher income than work undertaken in Hong Kong since the Stuntmen Association recommends and suggest a daily wage of 1.5 times the local daily wage for overseas work. 184.Given the above, a realistic average figure of the plaintiff’s pre-accident earnings would, in my view, be in the region of about $35,000 per month. 185.Moreover, I also do not accept the submission by the defendant that the plaintiff suffered a loss of only 2 months of earnings in the entire sick leave period and also the submission that the plaintiff did not suffer any loss at all for the entire period after the sick leave since much of the defendant’s submission is based on their estimates of earnings that plaintiff should have been able to make during those periods and therefore has inbuilt in it a measure of speculation. 186.As for the sick leave period, the plaintiff acknowledged that he did take on some work towards the latter part of the sick leave period. Even accepting that the plaintiff did take on some work during his sick leave, his earnings during those 11 months could not have been on par with his pre-accident earnings. 187.I find that the plaintiff did return to doing some work in or around March or April of 2004. That would be consistent with about the time the plaintiff defaulted his therapy treatment. It also fits in with the plaintiff being in Singapore in March and April 2004 on a work visa applied for him by Media Corp. 188.There is also evidence which is undisputed that between June and September 2004 the plaintiff was engaged with working on the production of a movie entitled The Myth and for which he was contracted to be paid $134,663 by 4 separate instalments by cheque. 189.For the year 2005, the plaintiff admitted that he made 5 further trips to Singapore which was for work totaling over 100 days and that the travel records of the plaintiff also showed that the plaintiff had stayed for lengthy periods in China also totaling over 100 days. 190.For the year 2006, the immigration record showed the plaintiff to have been away from Hong Kong for over 200 days of that year. The plaintiff admitted to being in China on and off totalling for over half the year and which was work related. However the plaintiff did say that he spent more time in China negotiating but which did not result in much work for him. 191.For the year 2007, the plaintiff was involved in several major productions namely, The Three Kingdoms, The Sniper and The Mummy III which was shot in China. 192.For The Three Kingdoms the plaintiff was engaged between March to July 2007 and what he was paid worked out to about $36,000 per month. 193.In respect of The Sniper, the plaintiff worked for about two months and was paid totally $75,000 which works out to be $37,500 per month. 194.As for The Mummy III, the plaintiff was engaged for some 39 days in China. 195.From the above analysis of the plaintiff’s work and earnings, and taking into account what he was able to earn in The Three Kingdoms and The Sniper in 2007, I come to the conclusion that the plaintiff had no difficulty, by the latest in 2007, in reaching the same level of earnings as he did pre-accident. 196.Moreover, from the table supplied by counsel for the plaintiff as contained in his written Closing Submission on quantum it can be seen that from counsel’s working as to the plaintiff’s average earnings for the year 2006, counsel came up with the figure of $33,312 per month for that year. That figure would be very close to the plaintiff’s pre-accident earnings and lend support to the view that I have taken as to the plaintiff reaching the pre-accident level of earnings by the latest 2007. 197.Given that the plaintiff’s earnings in The Myth between June and September 2004 may have been a one off things which worked out to be slightly over $30,000 a month for the time he spent working on that movie, I find that the plaintiff would likely have suffered full loss of earnings for the first 8 months of the sick leave period and some partial loss of earnings thereafter but only up to the end of 2006. Thereafter I do not find that there was any loss of earnings by the plaintiff. 198.There is no difficulty assessing the full loss of earnings in the first 8 months of the sick leave period by applying the pre-accident earnings of $35,000 which gives $280,000 199.The difficulty comes in calculating the amount of that partial loss of earnings thereafter since I found the figures given by the plaintiff in his evidence as being too unreliable and also am of the view that the figures and estimates put forward by the defendant to be far too speculative. 200.Therefore doing the best I can in the circumstances, I take the view that the plaintiff’s partial loss of earnings should be on a gradual decreasing scale since his resumption of work in about March 2004. 201.As his full loss of earnings go up to February 2004, it would be reasonable to adopt $8,000 as being his average monthly loss of earnings for the remaining 10 months in 2004. This gives $80,000. 202.For the whole of 2005, I will adopt $5,000 as his average monthly loss of earnings. This gives $60,000. 203.As for 2006, using the figure of $33,000 adopted by counsel for the plaintiff in his table as being the average monthly earnings of the plaintiff for 2006, the average loss of earnings for 2006 would come to $2,000 per month. This gives $24,000. 204.The total partial loss of earnings therefore comes to $164,000. 205.Together with the total loss of earnings during the first 8 months of the sick leave period will give $444,000.00. 206.Adding a further 5% to cater to the loss of MPF gives a final figure of $466,200. Special Damages 207.$10,000 has been agreed between the parties in respect of medical expenses, tonic food and travelling. 208.The plaintiff also claims for the services rendered by his wife for the 8 months’ period of his sick leave at $1,200 per month. 209.This is claimed on the basis that for the sick leave period, the plaintiff had to be taken care of by his wife since he was immobilized by casts, K-wire and resting splint. 210.However the medical evidence showed that the cast was removed some time in August 2003. Moreover, considering that the plaintiff was able to return to work after 6 months of sick leave, the claim for services rendered by his wife cannot reasonably be any more than 4 months. Accordingly, I will assess the services rendered by the wife to be $4,800. 211.Total special damages therefore comes to $14,800. Loss of Future Earnings 212.For the reasons given above and the findings made under the heading of pre-trial loss of earnings, there will be no assessment made for the claim of loss of future earnings. Loss of Earnings Capacity 213.The plaintiff claims for loss of earnings capacity in the amount of $223,056. 214.On the other hand, the defendant is only prepared to offer $100,000 under this head of claim. 215.Admittedly, it can be inferred from the opinion expressed by both experts that the plaintiff’s disabilities from his injury, being permanent, will make him less competitive in the open market where his work is concerned. 216.However, also taking into account what has actually happened, namely, that the plaintiff has gone back to working as a martial arts performer (as shown in The Myth and Kung Fu Fighter) as well as assistant martial arts director and also as a wireman, it has to be accepted that the later events have shown that the lack of competitiveness from his disability caused by the injury to have been only minimal. 217.In the circumstances, I am of the view that the offer of $100,000 by the defendant is a reasonable one and that is the amount I will assess under this head. Interest 218.Interest will be awarded at 2% p.a. for PSLA from date of writ, and at half judgment rate for loss of pre-trial earnings and special damages from the date of the accident. Deduction 219.It is not disputed that the plaintiff had already received $157,525 by way of employees’ compensation in May 2006, and credit will have to be given for that sum. Interest on pre-trial and special damages will also be accordingly reduced as from May 2006. Summary 220.The following is the summary of payment :
Conclusion 221.There will be judgment to the plaintiff in the sum of $789,696.00. Costs 222.There will be the usual costs order nisi that the defendant pays the plaintiff’s costs of his action, to be taxed if not agreed, and that the order nisi for costs to be made absolute in the absence of any application to vary such costs order after 14 days from the handing down of this judgment.
Mr Mohan Bharwaney and Mr Edward Poon, instructed by Messrs B. Mak & Co., for the Plaintiff Mr Andrew Li, Ms Money Lo and Ms Ann T.Y. Lui, instructed by Messrs Maurice W.M. Lee, for the Defendant |
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