YUEN CHUNG SHUN v. ON ASCENT LTD

HCPI 303/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 303 OF 2012

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J U D G M E N T

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Introduction

1. At all material times, the defendant company operated a cooked food business supplying meals to factories and other labour-intensive enterprises.  The meals were prepared in a kitchen situated in an industrial building in Tuen Mun.  The plaintiff was employed by the defendant as a cook and kitchen supervisor.  He took up his employment in or about October 2008 when he was 36 years of age.  The plaintiff was assisted in his work by a young man by the name of Liu Tung Shing (‘Liu’).

2. The dishes supplied to its customers by the defendant included a regular (although not daily) supply of soup.  In order to make the soup, it was necessary for the plaintiff to heat a large quantity of water in a vat or cauldron, adding ingredients and allowing the soup to cook for a sufficient period of time so that it had the necessary body and taste.  It is common cause that, when the cauldron used for making soup was 60% filled with water, that being the required amount before the adding of ingredients, it weighed something in the region of 120 kg; indeed the plaintiff (in his statement at 16 November 2012) estimated that it weighed in the region of 140 kg.

3. On the morning of 5 June 2009, the plaintiff and his assistant, Liu, were in the process of lifting the cauldron 60% filled with water on to a gas-fired stove when, as a result of the exertion, the plaintiff sustained an injury to his lower back.

4. The plaintiff brings this action against the defendant for compensation in respect of the injury.  His claim has been resisted by the defendant on the grounds of both liability and, if found liable, the measure of damages that should properly be awarded.

The issue of liability: the relevant circumstances

5. The plaintiff commenced work each day at 7 am, finishing at 6 pm.  During the course of the day, food boxes (and, if required, soup in thermos flasks) had to be made ready for delivery at three times: at  10:30 am, 12:30 pm and 4:30 pm.  The evidence indicates that the first shipment of meals was the biggest, consisting of some 250 meals.  By contrast, the late afternoon shipment would consist of something like   50 meals.  The plaintiff was not responsible for cooking all of the food.  Items such as roasted meat came from outside.

6. The busiest part of the day for the plaintiff and his assistant, Liu, was the opening three and a half hours, that is, from 7 am until    10 am when the day’s first shipment of meals had to be made ready.  When soup was on the menu, as it was on the morning of 5 June 2009, it meant that a large quantity had to be prepared and, when ready, ladled into thermos flasks for delivery.

7. The plaintiff and Liu had two gas-fired stoves which stood next to each other in one section of the kitchen, the stoves being fed by gas cylinders.  Large woks were used to cook the food on these stoves.  When soup was required, the soup would also be cooked in a cauldron on one of the stoves.

8. There were two water taps directly behind the gas-fired stoves. Hoses ran from both taps.  However, only cold water could be obtained from the taps.  When the plaintiff commenced his employment there was no hot water outlet in the kitchen.  Accordingly, when it was necessary to prepare soup, the plaintiff would place an empty cauldron on one of the two gas-fired stoves, filling it with cold water from the taps directly behind the stoves.  At a suitable time in the filling process, the plaintiff would light the stove to begin heating the water.  On the evidence, the water had to be brought to the boil (or near boil) before soup ingredients could be added.

9. This system was a safe one.  An empty cauldron was placed on the gas-fired stove.  It was then filled with water and brought to the boil (or near boil) before ingredients were added.  When it was time to transfer the soup into thermos flasks this was done with ladles.  When the cauldron was filled with water - cold or hot - it remained static on the gas-fired stove.  However, while safe, the operation appears to have been a lengthy one.  In his testimony, Liu estimated that, in addition to the time that it took to put sufficient water into the cauldron, it took some       45 minutes in the summer months to heat the cold water to the required temperature and took some 15 minutes extra in the winter months when the water was colder. Only then could ingredients be added and the soup begin to cook.

10. It was undisputed that, in order to meet the 10:30 am deadline, the soup went out whether it was fully ready or not.

11. The plaintiff testified that one of his two bosses, Mr Yip Sai On, a director of the defendant company, informed him on several occasions that there had been complaints about the soup to the effect that it was not tasty enough.  Plaintiff’s counsel, Mr Yau, submitted that the term used by the plaintiff was more consistent with the soup not being ‘rich’ enough or, put another way, not having enough ‘body’.  That submission was not challenged.  Both the plaintiff and his assistant, Liu, appeared to suggest in the course of giving evidence that the surest way of giving the soup greater richness or body was by cooking it longer.  That luxury, however, required time and with a 10:30 am deadline it was not always possible.

12. About two months after the plaintiff had commenced his employment with the defendant, a wall-mounted water heater was installed in the kitchen.  It was installed in another section of the kitchen above (or nearly above) a zinc trough.  A ceiling-high wall running some three quarters of the width of the kitchen separated the water heater from the two gas-fired stoves.  A plan of the kitchen indicates that there was no direct route from the gas-fired stoves to the water heater; it was necessary to walk along the wall to an opening further along the kitchen, passing work tables and storage areas.

13. Madam Hau Hiu Shui, the other director of the defendant company, testified that the wall-mounted heater was purchased    second-hand for a sum of about $2000.  It had a hot water storage capacity that was limited and, according to her, was in any event fitted with a thermostat that ensured that the water did not reach too high a temperature.  Madam Hau testified that the water heater was installed so that the third employee in the kitchen, a part-time employee whose job it wasto wash bowls, soup spoons, plastic containers and the like, could do so in hot water.  Madam Hau testified that the water heater was not installed to enable the plaintiff to fill his soup cauldron with hot water.

14. The fact that the water heater was installed close to a zinc trough well away from the gas-fired stoves used by the plaintiff lends credence to Madam Hau’s testimony concerning the primary purpose for the installation of the heater.  But it does not mean, of course, that she may not have looked to a secondary purpose for the water heater, namely, to assist the plaintiff in speeding up the process of preparing soup.

15. In the course of his evidence, the plaintiff accepted that he was not consulted about the intended installation of the water heater and was only informed about it by Madam Hau at the time of (or after) its installation.  It was, however, his evidence that Madam Hau instructed him that he should in future take hot water from the heater when making soup, the reason, the plaintiff surmised, being that it would speed up the soup-making process.

16. When questioned as to the practical feasibility of bringing hot water from one side of the kitchen to the other, it was the gist of the plaintiff's response that it was not for him to disobey an instruction from his boss, more especially if there had been complaints about the soup.  That was why he changed his soup-making operation.

17. The new system of operation adopted by the plaintiff, who did not consult either Madam Hau or Mr Yip, was - on any objective assessment - a hazardous one.  The system was as follows.  The plaintiff, with the assistance of Liu, would take the empty soup cauldron on a trolley to the water heater.  The trolley was the kind often used by removal men: a small square platform of wood without sides set on four wheels.  The cauldron would then be filled to the required 60% with hot water using the hose attached to the water heater.  Once filled, the cauldron would be pushed back through the kitchen to the gas-fired stoves.

18. Leaving aside the bulk and weight of the cauldron and the fact that it was substantially filled with hot water, according to the plaintiff and Liu, moving it presented one further difficulty.  With the constant delivery of fresh foodstuffs into the kitchen, the floor had in parts become cracked and broken.  Accordingly, the trolley containing the cauldron had to be pushed over an uneven floor that in parts had come away leaving the impediment of broken fragments.

19. Pausing for a moment, it should be noted that Madam Hau denied that the floor was in a bad state of repair.  It was her evidence that it was in a good state of repair, cleaned every day and subject to regular inspection by the health authorities.

20. In the operation of the plaintiff’s new system, when the trolley reached the gas-fired stoves, the cauldron then had to be lifted on to one of the stoves.  The evidence indicates that, taking into account the height of the trolley and the fact that the gas-fired stoves were set relatively low, the cauldron had to be lifted a height of about 30 cm and then across on to the stove.  What must be remembered however is that the cauldron was bulky, containing hot water, and weighed at least 120 kg.

21. During the course of his testimony, Liu, who was at the time he gave evidence a supervising chef himself, said that the operation was a strenuous one; he had never had to undertake an exercise like it in any other kitchen.  The plaintiff himself admitted that he knew the operation was risky.  It was his evidence, however, as I have said, that he had no choice.  He had been told to use hot water; it was an instruction given by his boss and had to be followed.

22. Madam Hau did not accept this.  It was her evidence that she had no conversation about the water heater with the plaintiff and had certainly not given him instructions to use the hot water to fill, or partially fill, the soup cauldron.  The plaintiff, she said, was employed as an experienced kitchen supervisor.  It was not for her to tell him how to do his job.  It was not within her contemplation either that he would go to the trouble of obtaining hot water from the heater or, if he did choose that option, that he would do so in such a hazardous manner.

23. Mr Yip, the other director, was not called to give evidence.

24. As to how in specific terms the injury to the plaintiff's lower back came to be caused, not unreasonably the plaintiff, when he came to give evidence, could only describe what happened in general terms.  He said that the cauldron had handles on either side.  He and Liu lifted the cauldron together.  However, in lifting the cauldron and moving it sideways onto the stove, he had to turn his body.  As he did so, he said, he had the sensation that the floor was moving beneath the ball of his right foot or that he had stepped on some broken fragments of the floor which moved.  This resulted in some loss of balance.  Instinctively, he had acted to keep the cauldron stable and, with his body twisted at an angle, had injured his lower back.

25. The plaintiff testified that he felt a sharp pain in his lower back.  He knew he had sustained an injury.  However, as work in the kitchen was very busy, and as he could not obtain a replacement, he remained in the kitchen.  The following morning, he said, he had difficulty getting out of bed.  He managed to go to work that day but in the evening attended the Accident and Emergency Department of Tuen Mun Hospital where he was referred to the Orthopaedic Department for further treatment.

26. Finally, before turning to my reasons for determining the issue of liability, mention should be made of the fact that a short time after the plaintiff sustained his injury the kitchen was closed down.  The reasons for closure were not connected with the plaintiff’s injury.

27. A direct result of the closure is that much of the evidence before me consisted of estimates rather than specific measurements.  For example, the floor plan of the kitchen appears to have been drawn from memory.  As to the true state of the kitchen floor, there was no independent evidence; for example, no photographs of the floor taken at or about the time.  I was therefore left with a direct conflict of evidence, the plaintiff and his witness saying that the floor was broken and dangerous, Madam Hau asserting that it was not.  A photograph was put into evidence by the plaintiff.  However it was a photograph of another floor in another establishment and was therefore entirely self-serving.  In light of the lack of convincing evidence, I was unable to find on the probabilities that the floor had been in the bad state alleged by the plaintiff.

28. To equal effect, the plaintiff put in a photograph of a soup cauldron but it was not the cauldron in question, it was another cauldron which, according to the plaintiff, was “similar”.

29. It appears also that the evidence concerning the water-heater given by Madam Hau was drawn from her memory.  No photograph of the actual heater was put into evidence nor any manual of instructions or specifications.

30. In the result, however, I am satisfied that in the present case specific measurements, while obviously they would have been of assistance, were not required to enable me to reach an informed determination.

Determining liability

31. In determining the issue of liability, I proceed on the basis of my finding that on the balance of probabilities I am satisfied that the plaintiff had at some stage well before the date of his injury changed the nature of his operation in terms of which he gathered water for the soup cauldron, adopting what I have described as the hazardous system.

32. It was the plaintiff's evidence that he had changed the nature of the operation very shortly after the installation of the water heater when he received instructions from Madam Hau to use hot water from the heater to make soup.  It was not disputed that the water heater was installed about two months after the plaintiff commenced his employment.  This would have been around the end of 2008 or the beginning of 2009.  According to the plaintiff, therefore, even without the benefit of specific dates, he would have employed the hazardous system for several months before his injury.

33. While Liu did not state in direct terms how long he and the plaintiff had adopted the system, it was the clear implication of his testimony that the occasion on which the plaintiff injured himself was not the first time that the system had been employed.

34. The assertion by the plaintiff and Liu that the system had been in operation for some time was supported by their further assertion that Madam Hau and Mr Yip must both have known of its operation.  Neither the plaintiff nor Liu was able to point to any specific occasion when Madam Hau or Mr Yip saw the system in operation.  It was instead the very clear thrust of their evidence that, as the two directors of the defendant company had offices adjoining the kitchen, even though they did not come into work as early as 7 am and may not therefore have seen what happened first thing in the morning, there were sufficient other occasions when soup was made when they would have had every opportunity to witness the operation.

35. I would add that during the course of the trial some time was spent considering whether the water heater could generate sufficient water of the desired heat to make the exercise worthwhile.  However, as I have said, there was no independent evidence as to the capabilities of the water heater and I am satisfied that I can accept the evidence of the plaintiff and his assistant, Liu, that they did regularly carry hot water from the water heater back to their corner of the kitchen.  I can see no reason for doing this unless a relatively sufficient amount of hot water, even if not boiling, could be obtained.

36. Other than the oblique attack related to the capability of the water heater, the fact that the plaintiff had adopted his hazardous operation was not denied by the defence.  It was instead Madam Hau’s testimony that she had never instructed the plaintiff to do so and had no idea that he was drawing hot water from the water heater in order to make soup until after his injury.  In this regard, in her statement of 5 October 2012  she said (in English translation):

“I have never asked [the plaintiff] to make soup with hot water. Being a chef for many years, he should have known how to make soup, so I did not give [the plaintiff] any advice on how to prepare soup. Besides, I did not know [the plaintiff] was making soup with hot water.”

37. Accordingly, the consequence of Madam Hau’s evidence, considered in context, was to the effect that she gave no specific instruction to the plaintiff to draw water from the water heater.  The plaintiff was the kitchen supervisor and she therefore left such matters to him.  She had no reason, therefore, to pay particular attention to the activities in the kitchen and knew nothing of the plaintiff's hazardous system for heating water by drawing hot water from the water heater and conveying the cauldron to the other side of the kitchen.

38. As I have said, the plaintiff's evidence was to the contrary.  He testified that he had been given specific instructions to draw hot water from the heater in order to make soup despite his misgivings as to the safety of the operation that he adopted in order to do so.

39. On a balance of probabilities, I do not accept that Madam Hau gave any such specific instruction.  On a consideration of the evidence, I have been drawn to the view that the probabilities indicate that this was a tactical assertion on the part of the plaintiff, much of whose evidence as to liability and quantum I found to be coloured to his own advantage.

40. I accept, however, that it is highly probable that there was some general conversation about the water heater between the plaintiff and Madam Hau at or about the time when it was first installed, both parties being aware that it was a source of hot water that may assist the plaintiff in the discharge of his duties.  Certainly, the plaintiff could not have overlooked the fact of its installation and equally certainly Madam Hau must have been aware that the plaintiff would look to using it if he felt it necessary.

41. As I see it, in the absence of a specific instruction to use the hot water heater for the making of soup, the decision to do so had to be that of the plaintiff.  He was after all the kitchen supervisor and had a measure of discretion.  Why, however, when he had a safe system already in operation, would he devise this new system? There could only have been one reason, namely, because, in light of the complaints as to the richness and body of the soup, he believed that the new system would be quicker and would therefore allow a longer period of time for the cooking of the soup.

42. In summary, I am satisfied on the probabilities that the system of drawing hot water from the water heater was devised by the plaintiff. It was adopted by him on his own initiative, the reason being the need, as he saw it, to quicken the soup-making process.

43. The plaintiff admitted that he devised the system without discussing it with either Madam Hau or Mr Yip.  More than that, he freely accepted that it was to his knowledge a risky system.

44. The plaintiff accepted that there were plastic buckets available but considered that carrying such buckets back and forth between the water heater and the cauldron would take too much time.  He said he was too busy to devise some other system, for example, connecting a longer hose from the water heater outlet so that it would run to the cauldron on the gas-fired stove.

45. In my judgment, however, the fact that the plaintiff was the author of his own hazardous system does not free the defendant from liability.

46. I say that because at all times there existed an employment relationship between the defendant, as employer, and the plaintiff, as employee.  The defendant was therefore under a duty of care to the plaintiff, one element of that duty being the provision of effective supervision.

47. In my judgment, the two directors of the defendant failed completely to provide effective supervision of what went on in the kitchen, leaving it entirely to the plaintiff.

48. On behalf of the defendant, it was submitted that where the operation is simple and the decision on how it should be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workman on the spot (see Winter v Cardiff Rural District Council [1950] 1 All ER 819, 822-823).  On behalf of the defendant it was further submitted that the law does not require perfection on the part of the employer.  An employer who has exercised such care reasonably expected from a careful employer is not to be found liable to his injured employees for negligence simply because, with the benefit of hindsight, something could have been done better.

49. I do not disagree with these submissions.  In the present case, however, the two directors did not take such care as is reasonably to be expected of a careful employer.  They took no care at all.  They left the plaintiff entirely to his own devices on the basis that he had been hired as a chef and kitchen supervisor.  It was one thing to leave it to the plaintiff to design menus and ensure that food was properly cooked, it was another entirely to leave it to him to design and carry out all operations in the kitchen without any form of oversight.

50. The plaintiff was not given an entirely sedentary job; he did not sit at a desk and fill out papers. While I am satisfied that, in the normal course of things, his job would not have required heavy manual labour, the fact is that it was a reasonably active job: food had to be received and stored in large quantities, it had to be unpacked and cooked, hot oils being used, knives and similar implements had to be employed.  Without some reasonable form of supervision a real possibility of unsafe practices being developed was always there.

51. The operation which is the focus of this judgment speaks to the need for supervision.  The exercise of carrying hot water from one side of the kitchen to the other was not a simple one.  It required a considered plan.  For example, were a number of buckets to be employed or was a long hose to be purchased? In such circumstances, as I see it, an employer cannot expect his workmen to devise and operate systems that have a certain complexity and may be hazardous without at least some reasonable level of supervision.  To abandon all oversight is the antithesis of effective supervision.

52. On the evidence, it appears highly probable, indeed almost certain, that if the two directors had exercised some reasonable form of supervision by way, for example, of regular inspections at different times of day, the injury to the plaintiff would have been avoided.  The drawing of such a large quantity of hot water into a cauldron, lugging it across the kitchen on a small trolley and then having to lift it, despite its very considerable bulk and weight, would - with any form of perceptive inspection - have raised all sorts of alarms.  It was patently, to use everyday language, ‘an accident waiting to happen’.  As I have said, the plaintiff admitted that it was a risky exercise and his assistant, Liu, complained also that it was a strenuous process, one that he had never had to repeat in any other kitchen.  The two directors however made no such inspections, regular or otherwise.  There was certainly no mention of it in the evidence.

53. It is apparent that the plaintiff devised his system of operation because he was under pressure to ensure a satisfactory product within a limited time period.  When asked why he had not sat down, perhaps taken advice, and devised a safer system, he replied to the effect that he simply did not have the time.  Put simply, he was at the work face each hour of the working day and did not have the privilege of being able to sit back in the calm of an office in order to work out an effective and safer system.  As Lord Oaksey said in General Cleaning Contractors Ltd v Christmas [1953] AC 180, 190:

“Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a boardroom with the advice of experts. They have to make their decisions on narrow window sills and other places of danger, and in circumstances in which the dangers are obscured by repetition.”

54. In summary, in my judgment, in leaving it to the initiative of the plaintiff to devise safe systems of work for himself and his assistant on the basis of ‘well, he should know what to do’ the defendant’s two directors failed to discharge the minimum requirements of their duty of care to the plaintiff and the other employees.

55. If the floor of the kitchen had been in the poor state alleged by the plaintiff and his witness, it would have aggravated the failure of the defendant.  But, even if the floor was in good condition, the failure on the part of the two directors of the defendant to discharge their duty of care remained.

The issue of contributory negligence

56. It has been argued that the plaintiff was an experienced chef; he was a kitchen supervisor who must have understood that there were safe and unsafe ways of doing things.  Yet he persisted in a patently hazardous operation for a number of months.  In persisting in that operation, which he knew to be risky, he not only put himself at risk but also his assistant.  Over the period of months that he carried out the operation he must have had sufficient time to devise a safe alternative.  As the kitchen supervisor that would have been part of his duties.  But he failed to do so.  More than that, knowing that this regular operation was a risky one - both to himself and his subordinate - it would have been a simple matter to consult his employers to explain the difficulties he faced and, in consultation, to come up with a safe system.  This he failed to do.  He must therefore bear a good measure of the blame himself.  His actions did not constitute mere inadvertence on his part but had clearly constituted negligent conduct, a form of conduct that quite clearly put himself and his assistant at risk.

57. In respect of the issue of contributory negligence, I have found that the defendant company entirely abandoned its duty of care to the plaintiff and his assistant to ensure effective supervision and a safe workplace.  In the result, the plaintiff was left entirely to his own devices, working in an environment not entirely free of hazard; being under an obligation to prepare large quantities of food and soup of sufficient standard and within a limited time frame.  As I have said earlier, if there had been any form of practical supervision a safer method of transporting the water would in all probability have been devised.  Accordingly, while I agree that the plaintiff, working in the knowledge that what he was doing was risky and nevertheless doing so over an extended period of months, must bear some blame, I am of the view that a reduction of damages of just 20% adequately compensates for his contributory negligence.

Quantum – looking to the plaintiff’s injury

58. The day after his accident, the plaintiff attended the Accident and Emergency Department of Tuen Mun Hospital complaining that he had sprained his back.  That first medical examination revealed tenderness over the area of the lower back although the relevant neurological examination was normal.

59. In the months that followed the plaintiff continued to complain of persistent lower back pain and tightness.  On occasions he would report that his condition was improving, on others that it was no better or getting worse.  Between June 2009 and February 2011 he saw a number of doctors, both public and private, underwent physiotherapy treatments and, so he reported, sought traditional Chinese medicine treatment on some 30 to 40 occasions.  According to the plaintiff, the lower back pain persisted, so much so that for a time, until early 2011, he found it necessary to walk with the aid of some form of walking stick: although in one document it is said that the need for a walking stick was only on rainy days.

60. The plaintiff underwent prolonged physiotherapy treatment at the Tuen Mun Hospital.  In a report dated 5 February 2010 – eight months after the accident - the physiotherapist stated that the plaintiff was able to stand and walk frequently, this being part of his critical work requirements.  His major areas of dysfunction, were related to his strength in lifting and “bilateral carrying” and “positional tolerance” when standing.  The report concluded by saying that the plaintiff may be able to return to his former work as a chef and kitchen supervisor provided he was given assistance by his work colleagues in lifting objects (presumably objects that are relatively heavy) and provided further that he was able to lessen the periods when he had to remain on his feet.

61. In addition to his physical discomfort, it was the plaintiff'’s case that he developed emotional problems too, more particularly depressed moods for which he received medication.

62. On 1 September 2011 - some 27 months after his accident - the plaintiff underwent a joint examination by his chosen expert, Dr Johnson Lam and the defendant’s chosen expert, Dr KC Lam.

63. The two doctors agreed that, in respect of the lumbar spine, while there was evidence of “mild degenerative changes with marginal osteophytosis in the mid to lower lumbar spine”, the bony alignment was normal, the disk spaces were retained and the posterior elements were intact.

64. In respect of his gait, the two doctors were further agreed that the plaintiff was able to sit without apparent distress for 45 minutes, he could get up from his chair smoothly and walk in a normal gait unaided.  He could stand and walk on tiptoes or heels.  He could squat fully, not requiring support to rise.  They further noted that the plaintiff's back movement was good, his forward flexion being normal while his backward and sideward flexion was just 5% below the normal range.  In respect of the plaintiff's lower limbs, no obvious muscle wasting or spasticity was noted.  He had satisfactory and symmetrical hip, knees and ankle movement.

65. As to the nature of his lower back injury, the joint experts agreed that the plaintiff's injury was of soft tissue origin, there being no suggestion of more serious damage such as a bony fracture.  Nor was there a suggestion of neurological deficit.

66. As to the plaintiff’s condition at the time of the joint examination, both doctors agreed that the plaintiff'’s condition was now stable.

67. Dr Johnson Lam, the plaintiff’s expert, pointed to the likelihood that at the time of his accident the plaintiff was already suffering mild degenerative changes in the lumbar spine with osteophytes.  Such changes, he said, were common among members of the adult population who engaged in manual work.  Such changes may have no symptoms or only mild symptoms and many adults are able to work to their normal retirement age despite such changes.  The doctor was of the opinion that the contribution of the pre-existing condition should not be more than 10%.

68. An injury of the kind diagnosed by the two doctors - a soft tissue injury in or about the lower back - presents particular difficulties, considerable reliance having to be placed on the subjective views of the injured person.

69. Dr Johnson Lam, the plaintiff's expert, rejected the diagnosis that the plaintiff's lower back pain was due solely to muscle strain.  When looking to the circumstances of the accident, the doctor was of the view that there could have been considerable soft tissue injury to the back including injury to “say, facet joints/ligaments/disc”.  The doctor was of the opinion that the accident had aggravated the pre-existing back condition, triggering and causing persistent pain in the lower back.  The doctor was of the opinion that the plaintiff “still had genuine pain and disability in the lower back”, its degree being “mild to moderate”.  The doctor was of the opinion that the plaintiff’s back condition should carry 5% whole person impairment and 5% loss of earning capacity.

70. Dr KC Lam, the defendant’s expert, disagreed.  He was of the view that the plaintiff -“at most” - had a back strain with soft tissue/muscle involvement.  He was of the view that discomfort caused by such an injury “could usually recover within a short time”.  In his opinion, “the diffuseness, chronicity and intensity of the present back complaint” were out of proportion to similar injuries of similar age, there being minimal objective signs to support the claims of distress.  He was of the view that there were features suggestive of “magnification of symptoms”.  In short, the doctor was of the view that the plaintiff had been exaggerating his symptoms.  He estimated a whole person impairment of 1% only and 1% loss of earning capacity.

71. Even though there was disagreement, both doctors were of the view that the level of the plaintiff’s discomfort in the area of his lower back was not excessive: the plaintiff’s expert described it as being at mild to moderate.  This is to be contrasted with the plaintiff’s own        self-assessment recorded on 16 November 2012, more than a year after the joint assessment.  In a statement of that date the plaintiff said that he was suffering intermittent pain in his lower back which was aggravated during sitting and walking.  He said that he had weakness in both legs when walking up and down stairs and that it was necessary often to support the small of his back with one or two hands when walking.  He said it was necessary to use a walking stick when walking on rainy days.  His neck and legs, he said, were painful and swollen; he had pain in his heels and he required his family’s assistance in handling various trivial household chores.  He said that he had marked reduction of physical strength. The self-portrait painted in November 2012 was of a man in markedly greater discomfort than that assessed by the two experts a year earlier.

72. In my view, at trial the plaintiff attempted to colour much of his evidence to his own advantage.  The probabilities indicate that the self-assessment of November 2012 was materially influenced to the same end.

73. I am reinforced in my view by my finding that, when testifying as to his future to hold down a responsible job, the plaintiff exaggerated the demands of the job he held at the time of his accident.  While as a chef and kitchen supervisor the plaintiff  no doubt from time to time had to involve himself in relatively heavy physical exertion,      I cannot see how that would be integral to his daily responsibilities.  The lifting of the soup cauldron was quite patently a dangerous and unnecessary exercise and, as Liu said, not an exercise that he had had to repeat in any other kitchen before or since.

74. In respect of work prospects, Dr Johnson Lam was of the opinion that, with exercise to strengthen the back, proper pain control and a gradual return to work programme, the plaintiff “may be able to return” to his pre-accident job provided he could secure more frequent short rest breaks and was assisted in lifting heavy objects.  Dr KC Lam, however, was of the view that the plaintiff should have no difficulty returning to his pre-accident job as a cook and supervisor.  In his opinion (with which I agree) such a job would entail only moderate manual work most of the time.  Dr KC Lam was further of the view that the plaintiff’s injury should not leave him with any permanent substantial disadvantage in the job market or result in a higher probability of him losing employment as a result of his injury.

75. As to future work prospects, it seems to me that there was little separating the two doctors.  Both were agreed that the plaintiff could return to his old work provided he was not left to lift heavy objects on his own, that is, without some form of assistance or the ability to delegate such tasks, and provided that he was not forced to remain on his feet without respite for extended periods of time.

76. I am satisfied that the greater weight is to be given to the opinion of Dr KC Lam.  The doctor observed that a supervising chef would rarely be required to extend himself by regularly lifting heavy weights without any form of assistance or the ability to delegate.  It further seems to me that it would not be beyond the wit of the plaintiff, if he obtains employment as a chef and kitchen supervisor, to ensure that he has a stool or chair nearby so that he can sit during a less hectic times of the day.

77. In this regard, it is important, I think, to place matters into context.  At the time of his accident the plaintiff was in his mid-30s.  He already had very considerable experience as a chef but at a particular level of skill and endeavour.  He was running a kitchen with the assistance of just one younger man and with a part-time dishwasher.  He was not running a large kitchen with a large number of kitchen staff around him; he was not operating at the sort of high-level that is to be found in kitchens supplying food of a very high quality to large numbers of discerning patrons or in kitchens situated, for example, at airports where the time constraints and the quantities involved demand high levels of mental determination and manual dexterity.  During the course of submissions, I was referred to the fact that the plaintiff’s assistant, Liu, was now supervising a kitchen himself with a staff of 10 or 11 persons.  However, nothing was put before me to suggest that the plaintiff, who at the time of his accident was in his mid-30s, had been seeking to advance on any similar trajectory.

78. Turning now to the extended sick leave that had been granted to the plaintiff, Dr Johnson Lam was of the view that, having regard to the pre-accident demands of his job as a chef and kitchen supervisor, the severity of the injury and the need for rehabilitation, the period of sick leave that was granted by the various doctors was appropriate.  Dr KC Lam, however, was of the view that it had been unnecessarily prolonged.  In his view, a six-month period of sick leave should have been the maximum.  As he observed: “there is no need for the sick leave to be continued until full recovery, as it might not be achieved in most cases.”

79. In considering the need for extended sick leave, I must of course take all factors into account and this includes the emotional problems suffered by the plaintiff.  These problems were considered by Dr CK Wong, a psychiatrist, his examination taking place on 8 December 2011.

80. The plaintiff informed the psychiatrist that, prior to his accident, he considered himself to be an extroverted and cheerful person, invariably in a good mood.  He enjoyed sports and other outdoor activities.  Intimate relations with his wife were healthy.  After the accident however, with his wife falling pregnant, he began to worry about his future.  He consulted a practitioner about his depressed moods and was referred to an out-patient clinic for psychiatric treatment.  His persistent lower back pains meant that intimate relations with his wife were more intermittent.  The pains also put a limit to his general daily activities.  The plaintiff informed the psychiatrist that his lower back pains were less severe than they had been in the weeks after his accident, being reduced to about half of the previous severity.  However, he continued to suffer from mood swings, often being irritable.

81. It was Dr Wong’s opinion that the plaintiff was spontaneous and forthcoming in describing his physical and mental symptoms.  He was unhappy and worried but his mood was not depressed, that is, as I understand it, the plaintiff was not suffering from clinically recognised depression.  His cognitive functions were not impaired.  Dr Wong was of the view, therefore, that there were no psychiatric reasons to account for the plaintiffs “persistent and a rather severe low back pain”.

82. Dr Wong was however of the opinion that the plaintiff had suffered from “adjustment disorder with depressed mood”, the disorder resulting from his reaction to a number of stresses: concerns as to his subjective feelings of constant pain, financial worries, worries about the litigation and worries about the future of his family.  The doctor was of the opinion that “mild symptoms” of the disorder and depressed mood remained.  He therefore recommended further limited psychiatric treatment on an out-patient basis.

83. Dr Wong was the view that there was nothing, from the perspective of a psychiatrist, to prevent the plaintiff from returning to his previous job with a “mild loss of earning capacity”.  He was further of the view that the emotional stresses the plaintiff had undergone would in the longer term have only minimal detrimental effect; indeed, he assessed it at 1%.

84. On a consideration of all the evidence, I am satisfied that in the months following his injury, the plaintiff did experience persistent and troubling discomfort in the region of his lower back.  I am further satisfied that the probabilities point to the plaintiff compounding his physical discomfort with emotional stress; that stress focused on his subjective sense of discomfort, his concern for the future of himself and his family and the uncertainties of the on-going litigation.  I have no reason to reject Dr Wong’s diagnosis that it in the months following the injury the plaintiff developed an adjustment disorder, that disorder being accompanied with depressed moods.  I am further satisfied that, in material part, the plaintiff’s emotional condition weakened his resolve resulting in subjective perceptions of his persistent lower back pain that were greater perhaps than the purely physical findings warranted.

85. For these reasons, I am not therefore in a position to reject the observation of Dr Johnson Lam that the prolonged period of sick leave was appropriate.

86. However, I am satisfied that by the end of 2011 the plaintiff was very largely recovered (both physically and emotionally) and able to return to work as a chef and kitchen supervisor subject to the condition that manual exertion was moderate only and that during the course of his working day he could find time to take the stress off his lower back by sitting.

87. I therefore reject the plaintiff’s implied assertions at trial that the intermittent discomfort in his lower back constituted an insurmountable obstacle to being able to obtain and hold down work similar to the work that he had enjoyed at the time of his injury and that only work that was far more modest, that is, more sedentary and passive, and therefore more modestly remunerated, was now within his capabilities.

88. On a consideration of all the evidence, I am drawn to the conclusion that, even though in the months after his accident the plaintiff was no doubt in a state of some considerable distress, that distress being compounded by his emotional problems, by the end of 2011, after seeing numerous doctors and undergoing extensive physiotherapy, the plaintiff was almost entirely recovered; importantly, as both of the experts agreed, his condition was stable.

89. On all the evidence, having had the opportunity to assess the testimony of the plaintiff in the context of his long history of medical assessments since his accident, I am satisfied that I should place greater weight on the assessment of Dr KC Lam as read with the assessment of the psychiatrist.

Pain, suffering and loss of amenities

90. In the Re-revised Statement of Damages, it was asserted on behalf of the plaintiff that his injury fell within the category of a “serious injury” as defined in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 and that an award of $450,000 was appropriate.  In his final submissions, however, counsel for the plaintiff adopted a more modest approach, seeking not less than $350,000.  Counsel for the defendant submitted that a figure much closer to $200,000 would be appropriate, certainly no higher than $250,000.

91. As is inevitable when assessing damages under this heading, I was referred to a number of cases in which it was submitted by counsel that the injuries sustained by claimants were similar to those sustained by the plaintiff in the present case.

92. Counsel for the plaintiff placed particular emphasis on Chan Yuet Keung v Harmony (International) Knitting Factory Limited [2010]  5 HKLRD 599 in which an award of $300,000 was made.  The plaintiff in the case slipped and fell suffering a soft tissue injury to his back.  It was likely that the injury was an important causal factor of a disc extrusion at L5/S1 level, resulting in persistent low back pain.  It was also probable that the injury aggravated a pre-existing mild degeneration of the back.  It was assessed that 10% of the plaintiff’s current condition was attributable to this pre-existing degeneration. It was said that prolonged standing, frequent lifting of heavy objects or other manual labour requiring exertion of the back was likely to cause discomfort or even pain.  However, it was found that the plaintiff was independent in most activities related to his daily living.  The judge commented that he would have awarded a slightly higher amount if it was not for the pre-existing degeneration of the plaintiff’s back at the time of the accident.

93. Counsel for the defendant referred me in particular to two cases: Mohammad Waheed Khan v Rising Sun Transportation Company Limited (unreported) HCPI 241/2010 and Fong Yuet Ha v Success Employment Services Limited (unreported) HCPI 345/2009.

94. In the first case, the plaintiff was employed as a driver who was required to assist with the manual labour of making deliveries of rice.  He had two accidents while carrying rice. He sustained a soft tissue sprain injury to his lower back.  He suffered from some residual back pain when walking, dressing, and undertaking daily activities.  One doctor was of the view that there was mild impairment, another that the impairment was moderate.  The court concluded that, while the plaintiff was capable of returning to his job as a driver, work which involved manual labour, for instance, requiring repeated bending and the back or handling heavy objects, would be unsuitable.  The plaintiff was awarded $180,000.

95. In the second case, the plaintiff fell resulting in soft tissue injuries to the left forearm, right heel, right buttock and lower back.  There was some evidence of pre-existing degeneration of the spine but it was held to be unlikely that the injury would have aggravated this pre-existing condition.  The one doctor assessed impairment of the whole person and loss of earning capacity at 5% whereas a second gave the lesser assessment of 2%. Both doctors agreed that the plaintiff was capable of returning to work.  In addition to her physical injuries, the plaintiff suffered a degree of psychiatric trauma: insomnia, irritability and headaches.  The evidence revealed that the plaintiff suffered from adjustment disorder with depressive mood, the depression no doubt increasing sensitivity to the sensation of pain.  Two psychiatrists examined the plaintiff, the one finding that the plaintiff’s psychiatric condition caused a permanent impairment of the whole person in the range of between 2 to 4%, the other finding that it was just 1%. The plaintiff was awarded damages of $250,000.

96. Looking to the cases referred to me, I have been drawn to the conclusion that an appropriate award under this heading would be $250,000.

97. In preferring the expert opinion of Dr KC Lam, I have made no allowance for any pre-accident degeneration of the spine demanding a discount of this figure.

Pre-trial loss of earnings

98. I am informed by counsel that the numerous doctors who saw the plaintiff awarded him a total of 532 days sick leave, that is, until     6 May 2011.

99. It is settled that sick leave certificates are not in themselves fully determinative.  In this regard, see Choy Wai Chung v Chun Wo Construction and Engineering Co. Ltd (unreported) CACV 172/2004 per Rogers VP:

“On this appeal Mr Chan SC, who appeared on behalf of the plaintiff, placed great reliance upon the fact that the plaintiff had been given sick leave certificates. In my view the judge was perfectly entitled to reject these as an indication of the plaintiff's inability to work for the reasons which she gave. It was for the judge to decide whether on the evidence the plaintiff had been unable to work and, if he had been able to work, the extent to which he was able to work. Obviously in doing so the judge must have regard to the medical evidence. Nevertheless, the judge cannot be bound by the mere issue of sick leave certificates. As the judge pointed out the issuance of sick leave certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”

100. As I have said earlier, there was a difference of opinion between Dr Johnson Lam and Dr KC Lam as to the extended period of sick leave granted to the plaintiff.  Dr Johnson Lam was of the view that, having regard to the pre-accident demands of his job as a chef and kitchen supervisor, the severity of the injury and the need for rehabilitation, the full extended period of sick leave granted by the various doctors was appropriate.  Dr KC Lam, however, was of the view that a period of six months sick leave - in round terms, until the end of December 2009 - was the maximum that should have been granted, the plaintiff being capable for all practical purposes of returning to his job as a chef at the beginning of 2010.

101. Understandably, however, Dr KC Lam looked solely to the physical aspects of his examination, not taking into account the psychiatric problems which burdened the plaintiff with constant worries as to his lower back pain (even if subjective) and worries about the future security of himself and his family.

102. Counsel for the defendant, Ms Leung, drew my attention to certain medical reports that she said supported the view of Dr KC Lam that by about the end of 2009 the plaintiff had sufficiently recovered to return to work.  These reports indicated, she said, that the best that could be done for the plaintiff had been done by about March 2010.  For example, a report issued at that time stated that the plaintiff had been given an explanation of the concept of a maximum medical improvement.

103. While these early reports have a certain persuasive value, looking to all of the reports, it seems to me that it was recognised by a number of doctors after March 2010 that the plaintiff continued to be troubled by persistent lower back pain.  The plaintiff’s complaints of continuing discomfort may have been subjective but the evidence suggests that by this time he had developed an adjustment disorder accompanied with depressed moods which would have heightened his sense of weakness and vulnerability.

104. In the result, I am not persuaded that I can reject Dr Johnson Lam’s opinion that the full period of sick leave granted by the doctors: a period of some 532 days.

105. In this regard, I note that the plaintiff himself started back at work on a consistent basis shortly after the expiration of his sick leave, taking up employment in mid-June 2011 as a kitchen worker and remaining in that employment until the end of 2011.

106. At the date of his injury on 5 June 2009, the plaintiff was earning a salary of $17,000.  He also received a daily meal as part of his terms and conditions, each meal being valued by him at $30.  The plaintiff has therefore assessed his pre-trial earnings at $17,780 per month.  I agree with the calculation.

107. The period of time from 6 June 2009, when the plaintiff commenced his sick leave, until 31 December 2011 when he completed his first ‘post sick leave’ job is a period of 30.83 months.  If the plaintiff had continued to be employed by the defendant on a salary (plus benefits) of $17,780 per month for this ‘first’ period of time, he would have earned a total of $548,157.40.  From this figure is to be deducted his earnings, namely, a sum of $4,470 earned in March 2011 (when he worked for a period of 10 days) and $91,000 earned from mid-June 2011 until the end of the year (when, as a kitchen worker, he earned $14,000 per month).  This makes for a pre-trial loss of earnings for this ‘first’ period of $452,687.40.

108. At the end of 2011, however, the plaintiff adopted a new course in respect of working.  From 1 January 2012 until 11 September of that year, he did not work.  It was his contention that he brought his wife and child from the Mainland and had the job of helping them to settle in to the Hong Kong way of life.  The plaintiff has made no claim in this regard.  In my view, however, it is not that simple.

109. I say that because, having returned to the workforce for over six months as a kitchen helper and, with that experience behind him, being ready to look for better employment, perhaps as a chef with some supervisory responsibilities, the plaintiff instead chose to give up work entirely for a period in excess of nine months.  Expressed in everyday language, he put himself back almost to ‘square one’.  The fact that, when he took up employment again on 11 September 2012, he did so as a casual kitchen worker earning just $200 per day, is illustrative of the point.  He went from earning $14,000 per month in the second half of 2011 to earning (on average) just $4,400 per month in the second part of 2012.

110. It is well settled that a victim of physical injury is required to mitigate his losses.  Such mitigation must be reasonable in all the circumstances; put another way, it must be sufficient.  In my judgment, it was neither reasonable nor sufficient for the plaintiff, having worked for over six months and thereby being able to demonstrate that he was ready again to take on more responsible kitchen work, to then give up all form of work for over nine months.  I am further satisfied that this failure was compounded by the fact that, when he did return to work, the plaintiff took on an entirely menial job, working on average 22 days per month as a casual kitchen worker.

111. I am satisfied that, by September 2012, if the plaintiff had continued to work, seeking to return to a level of work close to the level that he had discharged at the time of his accident, even taking into account his limited disability, physical and emotional, he would have been able to command a salary of at least $15,000 per month together with the benefit of one free meal (valued at $30) per day.  It is on this basis that I will assess pre-trial loss of earnings for the ‘second’ period, that is, from 11 September 2012 until the commencement of trial on     5 September 2013, a period of 11.83 months.

112. Accordingly, if the plaintiff had continued to be employed by the defendant on a salary (plus benefits) of $ 17,780 per month, he would have earned a total of $210,337.4.  From this is to be deducted his notional earnings of $15,780 per month, a sum of $186,677.4, leaving a loss of $23,660.

113. I pause at this juncture to note that the remuneration actually earned by the plaintiff during this ‘second’ period came to a total of $141,754 calculated as follows:

1. He worked as a casual kitchen worker from 11 September 2012 to 8 February 2013, his main duty being the frying of food.  His daily wage was $200.  He worked on average 22 days per month, his average monthly income being $4,400.  His total earnings for this period of time were $21,824.

2. He worked from 1 March 2013 to 5 May 2013 as a chef.  His monthly salary was $14,000, his total earnings being $30,240.

3. He worked from 6 May until trial at the beginning of September 2013, and continues to work, as a chef, his principal duty being preparation of snacks.  He earns a monthly salary of $13,500.  From early May until the beginning of trial, his earnings therefore were $54,000.

4. He also worked part-time for a period of seven months as a kitchen worker, earning a total of $35,690.

114. The actual earnings, however, are less than the notional earnings that I have calculated above.  Accordingly, I have not taken the actual earnings into account.

115. On my calculations therefore it would be fair to say that the plaintiff’s total loss of pre-trial earnings (for the ‘first’ and ‘second’ periods) were $476,347.4.

116. On this figure the pre-trial loss of MPF would be ($476,347.4 x 5%): $23,817.37.

Post- trial loss of earnings

117. On behalf of the plaintiff, it was submitted that at this time the salary of a cook who is a kitchen supervisor is $22,000 per month, this being the amount which the plaintiff could properly expect to be earning if it was not for his accident.  As it is, he now earns just $13,500 per month as a chef in what appears to be a karaoke establishment where he prepares snacks and the like.

118. In support of the contention that the plaintiff could expect to be earning $22,000 per month at this time, reference was made to the Quarterly Report of Wage and Payroll statistics issued in March of this year in which, in respect of Chinese restaurants, it was said that the average monthly salary of a ‘chief cook’ is $21,989.

119. This provides only the very broadest guideline of course as the salary of a chief cook or supervisor will vary, sometimes significantly, depending on the size of the establishment, the length of service and skill of the individual.

120. On behalf of the defendant, it was said that the award of $21,989 was for a chief cook, the person heading up a kitchen with a reasonably large number of staff. The plaintiff had never held such a position nor aspired to do so.  An appropriate salary for an ordinary cook in a Chinese restaurant, it was submitted, was $15,543, this figure coming from the Quarterly Report.

121. Doing the best I can, I am prepared to accept that, if it was not for the accident, the plaintiff would by now have been earning $20,000 per month, just $3,000 per month more than he was earning in mid-2009, some five years ago.  That being said, I am satisfied that if, having regard to the plaintiff’s minimal disability, he had reasonably mitigated his loss when he was able to do so, instead of now earning just $13,500 per month, he would now be capable of earning at least what he was earning at the time of his accident with a small increase.  I would set that figure at $18,000 per month.

122. I am sure that a chief cook with kitchen staff under his control is given the traditional benefit of a free meal each day just as the plaintiff would be in the somewhat less elevated position that I am satisfied he is capable of discharging.  Accordingly, when looking to future loss of income, I do not see that it is necessary to complicate the computation with an allowance for the benefit of a free meal each day on both sides of the comparisons.

123. The plaintiff is now 40 years old.  It has been agreed that the appropriate multiplier is 15.54.  On the basis of my reasoning set out above, I would assess the post-trial loss of earnings to be $2,000 per month, that being $24,000 per year.  That being the case, post-trial loss of earnings come to $372,960.  Post-trial loss of MPF comes to $18,648.

Loss of earning capacity

124. It has been submitted on behalf of the plaintiff that, due to his continuing lower back pain and psychiatric problems, the plaintiff will definitely suffer disadvantage in the labour market and that an award of $250,000 would be appropriate to cover the diminishment of his earning capacity.  On behalf of the defendant, it has been accepted that some figure should be allowed, it being suggested that an appropriate amount would be $81,000, that being six times his present monthly income of $13,500.

125. Even though, in my opinion, the plaintiff has exaggerated the degree of his disability, I think it must be accepted that if he was ever to lose his job, it would take him longer than otherwise to find suitable employment.

126. I am of the view that it would be appropriate to make an award in a global sum of $100,000 under this head.

Medical Expenses incurred

127. This figure has been agreed at $65,725.70

Travelling expenses

128. Not surprisingly, the plaintiff has no documentation to back up his claim for travelling expenses in the sum of $14,000.  During a material part of the time when the plaintiff was receiving medical attention, he was living across the border in the Mainland.  However, he has not been able to apportion the number of trips made from within Hong Kong and the number made from the Mainland.  The defendant has ‘conceded’ a sum of $7,000 for general travelling expenses which is said to be reasonable.

129. In the absence of authority to the contrary, I am concerned that the plaintiff should be able to claim travelling expenses from the Mainland, more especially as I have not been informed in any detail exactly how far he lived from the border and how cheap it was to get back to Hong Kong.  However, taking into account the long period of time that the plaintiff was on sick leave requiring fairly regular medical attention and that he had to seek medical attention thereafter too, I am of the view that a figure of $10,000 for travelling expenses is appropriate.

Tonic Food

130. An allowance for the purchase of tonic foods has been agreed in the sum of $5,000.

Future medical expenses

131. Again, agreement has been reached in respect of this claim, the agreed amount being $1,000.

Employees’ Compensation

132. The sum of $311,345 received by the plaintiff under this heading must be deducted from the damages awarded.

The summary table

133. By way of summary therefore, the amount due to the plaintiff is the sum of $747,453.78 made up as follows:

Pain, suffering and loss of amenities	250,000.00
Pre-trial loss of earnings	476,347.40
Pre-trial loss of MPF	23,817.37
Post-trial loss of earnings	372,960.00
Post-trial loss of MPF	18,648.00
Loss of earning capacity	100,000.00
Medical expenses	65,725.70
Travelling expenses	10,000.00
Tonic food	5,000.00
Future medical expenses	1,000.00
Sub-total	1,323,498.47
Less 20% for contributory negligence	264,699.69
Balance:	1,058,798.78
Less Employees’ Compensation	311,345.00
Total:	747,453.78

Interest

134. As claimed by the plaintiff, interest is awarded on the award of general damages at 2% per annum from the date of the writ to the date of judgment together with interest on the award of pre-trial loss of earnings and special damages at half of the judgment rate from the date of the accident to the date of judgment.

Costs

135. There will be an order nisi that the defendant to pay the plaintiff his costs of the action to be taxed if not agreed.  It is further directive that, if applicable in this case, the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.