NG YUK HA v. YIP SIU KEUNG

HCPI 1167/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1167 OF 2002

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J U D G M E N T

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1. This is a claim for medical negligence brought by the plaintiff against the defendant.

2. I am only concerned with the question of liability in this judgment since quantum has been agreed between the parties at $1.8 million subject to the issue of liability being determined.

Background

3. The defendant is a registered medical practitioner and operates a clinic at Room 1206, Champion Building in Nathan Road, Kowloon.

4. On 17 December 1999, the plaintiff, accompanied by her husband, Lui Kam Tong, consulted the defendant at his clinic because the plaintiff had a growth in her left neck which had gradually increased in size since it first developed.

5. After carrying out an examination of the growth on the left neck of the plaintiff and a diagnosis of same, the defendant advised the plaintiff that surgical intervention was indicated.

6. Upon the plaintiff accepting the advice given by the defendant for surgical intervention, arrangements were then made by the defendant for an operation to be performed by the defendant at the St Teresa’s Hospital on 21 December 1999.

7. The plaintiff was admitted into the St Teresa’s Hospital on 21 December 1999 and upon admission signed a consent form for “excision of the left neck mass”.

8. The operation was performed by the defendant in the afternoon of the appointed day with the assistance of Dr Chan Chi Keung being the anaesthetist during the operation.  The operation was carried out from 2.40 p.m. to about 5 p.m. on 21 December 1999.

9. On the day following the operation, while the plaintiff was recuperating in the St Teresa’s Hospital from the effects of the operation, she suffered an occlusion whereby blood supply to her brain was cut off which resulted in a stroke and leaving the plaintiff with permanent brain damage.  This in turn has resulted in the plaintiff suffering from aphasia and right sided weakness.

10. A histopathology report prepared by Dr S.L. Loke of St Teresa’s Hospital and dated 24 December 1999 confirmed that under microscopic examination the neck mass excised from the plaintiff by the defendant was a paraganglioma and that the lymph node excised was tuberculous lymphadentis.

Plaintiff’s claim

11. The plaintiff’s claim is brought in negligence against the defendant.

12. The negligence alleged against the defendant can generally be categorized into three main areas, namely, (a) during the pre-surgery investigation; (b) during the actual surgery itself; and (c) the after care during the post-operative period.

13. The particulars of negligence relied on by the plaintiff as pleaded in the Statement of Claim are as follows :

(a)	During the pre-surgery diagnosis and investigation :
	(i)	the defendant failed to inform the plaintiff at the time, but from later medical reports it became evident that the defendant had made a wrong diagnosis of the plaintiff’s condition and thought he was doing a lymph node excision biopsy but in fact the defendant was oblivious of the plaintiff’s true condition of paraganglioma at the carotid bifurcation;
	(ii)	the defendant failed to ask the plaintiff for a blood test report of Dr Chui Siu Hon on the plaintiff dated 30 March 1999 as well as a medical (biopsy) report of Dr Choi Kam Yee on the plaintiff dated 31 March 1999 which the plaintiff had and could have made available to the defendant; and
	(iii)	the defendant could and should have made more thorough investigation into the plaintiff’s case, including a new blood test, Doppler ultrasound, MRI and angiogram prior to carrying out the surgery on the plaintiff.
(b)	In respect of the actual surgery :
	(iv)	the defendant departed from what he originally told the plaintiff and her husband that he would only excise a small piece from the growth for investigation;
	(v)	the defendant failed to consider the use of frozen section surgery (which would have been safer) but embarked on a two hour operation to remove the entire lump from the plaintiff’s neck (this allegation was withdrawn by the plaintiff in closing speech and not pursued);
	(vi)	the defendant failed to appreciate the risk that prolonged surgery manipulating a big tumour and dissecting it off the outer wall of the internal carotid artery was liable to temporarily obliterate the arterial lumen or cause spasm which would render post-surgery occlusion of the artery more likely to occur;
	(vii)	the defendant was unduly concerned with damage to the facial nerves and had overlooked damage to the artery;
	(viii)	the defendant misjudged the physical characteristics of the tumour and thought that it was well encapsulated and away from the carotid sheath whereas in fact the origin of the tumour was within the outer wall of the proximal internal carotid artery; and
	(ix)	in the operation, the defendant had manipulated and cut the tumour away from the outer wall of the artery without appreciating that this might cause thrombosis.
(c)	In respect of the after care, post-operatively :
	(x)	the defendant failed to closely monitor the plaintiff’s condition (including pulse, blood pressure, conscious level and limb power) hourly for 48 hours as would have been required in her case;
	(xi)	the defendant had wholly missed obvious symptoms of trouble such as the plaintiff’s aphasia and continual nausea immediately after the operation; and
	(xii)	the defendant followed a simple routine of post-surgery monitor for a lymph node excision biopsy which was wholly insufficient for the plaintiff’s case.

14. It is necessary for me to list out above the pleaded particulars of negligence by the plaintiff in her Statement of Claim because at the trial, counsel for the plaintiff, either in his opening speech or closing speech, attempted to expand the plaintiff’s case to include allegations of negligence which had not been pleaded.  The expanded but unpleaded allegations of negligence (which relate to the pre-surgery advice/investigation) can be summarized as follows :

(a)	the defendant failed to warn the plaintiff about the risk of post-operative stroke, for if the plaintiff had been so warned, she may not have accepted the operation, alternatively, if that warning had been given, the husband of the plaintiff would have been alerted to any unusual signs or symptoms exhibited by the plaintiff during the post-operative period so as to detect the stroke and raise the alarm earlier than was the case;
(b)	the fact that the stroke was not detected until the evening of 22 December 1999 has deprived the plaintiff the chance of being treated with “thrombolytic agent” or “re-exploration” which would have changed the outcome; and
(c)	the defendant proceeded in the matter (from initial consultation to operation) with indecent haste because he wanted to line his own pocket.

15. The attempt to expand the plaintiff’s case to cover unpleaded allegations of negligence of the defendant was objected to by counsel for the defendant as early as during the opening speech by plaintiff’s counsel.  Despite such objections, no application was made by the plaintiff to amend the Statement of Claim.

16. Instead counsel for the plaintiff sought to justify the expanded case of the plaintiff by reliance upon paragraph 5 of the Statement of Claim.  However, paragraph 5 of the Statement of Claim only goes as far as to plead the duty owed by the defendant to the plaintiff.  What it does not plead are the specific breaches.  Specific breaches are pleaded and particularised in paragraphs 9 to 12 inclusive of the Statement of Claim and which have been summarised in paragraph 13 of this judgment as being the plaintiff’s pleaded case on negligence.  What have been in paragraphs 9 to 12 of the Statement of Claim do not include the “expanded” allegations which the plaintiff now wish to rely on.

17. It is not necessary for me to repeat once more in this judgment what these courts and also the rules of practice have time and again stated as to allegations of negligence having not only to be pleaded and particularized but also that the particulars should be precisely and accurately stated so that a defendant knows exactly the case he faces.

18. In a medical negligence case, it becomes even more important for the particulars of negligence to be precisely and accurately pleaded and particularized.  The observation by Patrick Curran QC in Personal Injury Pleadings (2^nd Ed.) is pertinent in this respect :

“Allegations of professional negligence are rightly regarded by practitioners as grave slurs upon their reputation.  There is simply no comparison with the allegations of negligence which are made against a motorist, for example, whose personal reputation is only likely to be affected by an allegation of a disgraceful kind.  Any doctor is likely to suffer intense personal and professional anxiety over an allegation of professional negligence, and this should not be forgotten when pleading the case;”

19. The course adopted by counsel for the plaintiff in presenting the plaintiff’s case is one where the goal posts has constantly shifted from the moment he opened the plaintiff’s case.  Nor can I accept the explanation offered by counsel for the plaintiff that it was merely “a shift of focus”.

20. The defendant came to court to meet the pleaded case of the plaintiff but has been greatly hampered in that respect because of the shifting goal posts.

21. In the absence of any application by the plaintiff to amend the pleadings, in particular those matters pleaded and particularized as being the defendant’s negligence in paragraphs 9 to 12 of the Statement of Claim, this claim brought by the plaintiff must be decided on those allegations pleaded and particularized in the Statement of Claim, and not on any unpleaded case by the plaintiff.

Factual disputes and assessment

22. There were several areas of disputed factual evidence between the evidence given by the plaintiff’s husband (“PW1”) and the factual evidence given by the defendant.

23. I should deal with the disputed factual evidence first before going into each of the particulars of negligence raised in this case.

24. Firstly, it was the evidence of PW1 that at the consultation, the defendant had told him and the plaintiff that the tumour was cancerous.  This is denied by the defendant.

25. This evidence of PW1 can hardly sit alongside his evidence that the defendant also told them that he could not say whether it was benign or malignant and that a small piece will have to be cut out for examination.

26. If the defendant had said that it was cancerous then there could not have been any need to cut out a piece for examination to see if it was benign or malignant.

27. I think that PW1 was wholly confused in this part of his evidence and shown to be unreliable.

28. Secondly, it was PW1’s evidence that the defendant told him and the plaintiff that the tumour was pressing on the artery.

29. However, the defendant could not have said this to PW1 or the plaintiff because the defendant knew, and it was confirmed by the plaintiff’s expert, Professor Poon, in cross-examination that there was no compression of the tumour on the artery.

30. Again PW1 must have been quite mistaken as to this part of his evidence and again shown to be unreliable.

31. Thirdly, in his oral evidence given in court, PW1 said that he had specifically asked the defendant about the danger of an operation if the tumour was so close to the blood vessel in the neck.  This, however, was not contained in his witness statement adopted by him as his evidence.

32. On the other hand, the defendant’s evidence was that it was he, the defendant, who had volunteered the explanation to the plaintiff and her husband, without any question being asked by them.

33. Although the disputed fact here is only of a very narrow compass (whether it was asked by PW1 or whether the defendant gave that explanation without being asked), however, the insinuation carries with it a much wider scope.

34. This explanation by the defendant goes to the very root of the matters complained of by the plaintiff and I cannot imagine if it was the case that such explanation came from the defendant only upon being specifically asked such a question by PW1 that PW1 could have missed out such a fundamental piece of evidence from his witness statement.

35. Given that PW1 has on other occasions been shown to be mistaken and unreliable in his evidence as to what had happened during the consultation, I prefer the evidence given by the defendant.

36. Fourthly, in paragraph 10 of his witness statement, PW1 stated that at about 5 p.m. when the surgery was finished, he had noticed that the plaintiff could not speak.

37. In his oral evidence from the witness box, he changed to say that in fact it was not he (PW1) who had realized that the plaintiff could not speak after the surgery but it was the defendant who had discovered that and told him that it was normal that the plaintiff would not speak for a few days.

38. Very likely this evidence was slipped in by PW1 in an attempt to explain why he made no complaint when, according to him, he found the plaintiff to be in an half-conscious state on the morning of 22 December 1999, and in doing so it contradicts with what he had stated in his witness statement.

39. Moreover, when crossed examined, it was put to PW1 that the Progress Notes of Queen Mary Hospital had recorded that during an interview which took place at 2.10 p.m. on 23 December 1999, he had told Queen Mary Hospital in that interview that he “noticed aphasia and right side weakness immediate after the operation”.  PW1 could only deny having said that when so confronted.

40. Once again, this part of PW1’s evidence is so fraught with contradictions with the contents of his witness statement and the record made by Queen Mary Hospital, I find that this evidence of PW1 is not reliable.

41. Fifthly, in paragraph 11 of his witness statement, PW1 alleged that he had been told by the nurse at about 9.00 a.m. on the morning of 22 December 1999 at St Teresa’s Hospital that the defendant had seen the plaintiff that morning and had remarked that it was abnormal for the plaintiff to be in a half-conscious state.

42. This evidence of PW1 was contradicted by the nursing notes which records that the defendant did not do the morning round that morning until 10.40 a.m.  Moreover, the nursing record further records that the plaintiff was awake when seen by the defendant at 10.40 a.m. (and not in a half-conscious state as alleged by PW1).

43. When confronted with such nursing records in cross-examination, PW1 shifted to saying that the conversation with the nurse took place in the afternoon of that day.  In re-examination, he again changed his evidence to say that there were in fact two such similar conversations with the nurse, one in the morning and one in the afternoon.

44. This part of his evidence is patently unbelieveable.

45. In the light of such evidence, I have grave reservation as to the evidence given by PW1 where it conflicts with that of the defendant.

46. On the other hand, the defendant has maintained consistently the same version throughout in so far as his evidence is concerned as to what had happened.

47. Accordingly, I have little difficulty accepting the evidence of the defendant where it conflicts with that of the plaintiff.

48. I now turn to deal with each of the particulars of negligence raised in the pleadings and the evidence relating thereto.

(i)  Wrong diagnosis

49. This allegation was based on the expert report of Professor Poon who was the neurosurgeon instructed by the plaintiff as an expert witness in this case.

50. When cross examined on this aspect of the case, Professor Poon said that it was an assumption on his part that the defendant was doing an excision biopsy of a lymph node upon his reading of the notes documenting the consultation with the defendant and the operation in this case.  Professor Poon further elaborated that his use of the phrase “excision biopsy” meant that the defendant knew he was excising the whole mass if no problem was encountered and subsequently a biopsy would be performed on the excised mass.

51. Professor Poon further agreed that paraganglioma can only be diagnosed by histological examination and not normally made by a clinical diagnosis, although it may, at that stage, be suspected.  He further agreed that paraganglioma and carotid body tumour are rare occurrences.

52. When ultimately confronted with the clinical notes of the defendant wherein the defendant had written by way of clinical diagnosis :

“? parotid   ? lymph node  ? neck of tissue tumour”

Professor Poon agreed that the defendant had not made any wrong diagnosis clinically as that would have been the diagnosis made by himself as well.

53. When further confronted with the Consent form in which it was written the words “excision of left neck mass”, Professor Poon accepted that there was no wrong diagnosis by the defendant in this case and that the defendant had intended to excise the entire mass unless problem was encountered during the operation.

(ii)  Previous Blood Test and Biopsy Report

54. In respect of this allegation, Professor Poon agreed that when he interviewed the plaintiff and her husband, he was given the impression that there were previous Blood Test Report and also a Biopsy Report which was not available to the defendant when the plaintiff consulted him.

55. When Professor Poon was told by counsel for the defendant that the plaintiff’s husband had confirmed in his evidence that the Biopsy report dated 31 March 1999 sent to Dr Choi Kam Yee had been supplied to the defendant at the consultation, Professor Poon was content to withdraw his criticism relating to the Biopsy report.

56. As for the Blood Test report, Professor Poon agreed that the relevance of the Blood Test report was to indicate (at the time) whether the plaintiff was or was not suffering from Nasal Pharangeal Carcinoma (“NPC”).  He agreed that in retrospect since the plaintiff was not suffering from NPC, even if a blood test was repeated the result would likely be negative and as such would not have affected the clinical course of the management of her tumour.

(iii)  Doppler ultrasound, MRI and Angiogram

57. Once again this criticism of the defendant came from Professor Poon.

58. In cross-examination, however, Professor Poon accepted that as a general proposition, these tests are not done unless it is indicated by the circumstances of the case that it should be done.

59. Professor Poon also accepted that an angiogram is only done where there is a high clinical suspicion that the mass cannot be separated from the carotid artery.

60. As for the Doppler ultrasound, Professor Poon admitted that when he wrote his first report in this matter, he was aware that an ultrasound had been conducted by another doctor but that report was not made available to the defendant.  What he was not aware of was that the defendant had also conducted an ultrasound scan to examine the mass on the plaintiff’s neck when the defendant was consulted by the plaintiff.

61. Professor Poon agreed that an ultrasound was useful in defining the relationship between the tumour and the surrounding structure in the neck.  A Doppler ultrasound is colour imaging to show vascularity but will not add anything to the relationship with the surrounding structure.  The degree of vascularity is one aspect to consider when deciding on surgical intervention.

62. Professor Poon further agreed that for a carotid body tumour, surgical excision is the treatment of choice and in this case surgical excision was indicated even if thorough investigation was done.  Whether or not a Doppler ultrasound was done, the surgery will be very similar, even identical.  However, the observation during and after surgery will be different if a Doppler ultrasound was done.

63. Professor Poon went on to agree that the histological report showed that there was no artery attached to the mass; no part of the artery has been cut out with the tumour; and that small veinous structure were present in the surrounding soft tissue.

64. Professor Poon further agreed that the defendant managed to excise the tumour without substantial blood loss, in fact there was minimal blood loss which showed that the tumour was not too adherent to the arterial wall.  He further agreed that this was a Schambling Type 1 tumour, and by its definition being such, can be excised without much difficulty.

65. Given all the above, Professor Poon conceded that not to order a Doppler ultrasound in the present case was not falling below the standard of a reasonable practitioner.

(iv)  Breach of oral representation

66. This criticism of the defendant cannot hold good in the light of the admission by the plaintiff’s husband in his oral evidence that the defendant did tell him and the plaintiff that the defendant would excise the whole neck mass and that what was stated in paragraph 6 of his witness statement is incorrect.

(v)  Frozen section

67. As already indicated, this particular of negligence has been withdrawn by counsel for the plaintiff in his closing submission in the light of the defendant’s expert evidence in this case coming from Dr Ah Chong and Dr Lam as well as the concession made by Professor Poon under cross-examination that not to order frozen section was not sub-standard practice on the part of the defendant.

(vi) – (ix) Prolonged surgery manipulation

68. These four items of particulars of negligence can be dealt with together as they relate to the same aspect, namely that the defendant failed to appreciate the risk of damage or injury to the carotid artery in the neck when carrying out the operation and which resulted in occlusion of the artery causing thrombosis.

69. There is no dispute that the defendant, as a general surgeon, was competent to perform this operation of excising the left neck mass.

70. The defendant gave evidence of the care taken by him in proceeding with the operation.  That evidence of the defendant was corroborated by the unchallenged evidence of the anaesthetist, Dr Chan who stated :

“This was a straightforward neck mass excision operation.  [The defendant] performed his operation slowly, carefully, and meticulously.  I had a good view of the operation site.  I did not see him applying any vascular clamps to the neck structures.  He only ligated superficial blood vessels of the skin.  I did not see him applying any stitches or haemostatic clips to the structures in the region of the carotid sheath or to any of the deep structures.  When he eventually removed the neck mass, he showed it to me. I could see that it was a vascular lump.”

71. The contemporaneous Anesthetic Record kept by Dr Chan further supported the fact that there was no haemodynamic disturbance during the operation.  If there had been any abnormal handling or manipulation of the Carotid Artery, there would have been remarkable changes in the blood pressure during the operation.  Professor Poon conceded in cross-examination that there was no such changes in the blood pressure during the operation.

72. During the two hours taken for removing the entire mass, the fact that no more than 20 ml blood loss, the histology showing “no artery attached” and “well circumscribed” in respect of the mass further supported the defendant’s evidence that the operation was smooth and there was no excessive manipulation of the Carotid Artery.

73. Given all the above factors, Professor Poon accepted in cross-examination that he had no criticism of the defendant in respect of the intra-operative care.

(x) – (xii) Post-operative care

74. The post-operative care complained by the plaintiff can be dealt with together despite it having been pleaded as three distinct particulars.

75. In this respect, Dr Walter King, the other expert called by the plaintiff, had stated in a medical report prepared by him and dated 26 April 2004 that the post surgery care received by the plaintiff was “appropriate and sufficient” and further that he (Dr King) agreed with Dr Ah Chong Ah Kian, the defendant’s expert, that the plaintiff’s post-operative care was adequate.

76. In the Summary at the end of Dr King’s expert report, it was stated as follows :

“The [plaintiff] has an uncommon tumour that requires a complex operation for removal.  Additional preoperative assessment with computerized imaging could better prepare the surgeon in the area of surgical planning and counseling of the [plaintiff] in regard to the risk of the procedure.

When operating on a suspected carotid body tumour, good exposure and vascular control of the carotid arteries may help minimize inadvertent injury to the carotid artery.  It is possible that when all precautions have been undertaken by an experienced head and neck surgeon, the risks of stroke, although small, cannot be entirely eliminated.  Under the circumstances, the plaintiff will benefit from continuing basic medical care and support designed to maximize her recovery from her unfortunate cerebral vascular accident (stroke).”

77. In the light of what was contained in his expert report, the defendant was prepared to agree to that report of Dr King being adduced into evidence without the need for Dr King to give oral evidence in court.

78. However, despite such offer from the defendant, counsel for the plaintiff still insisted on calling Dr King to give oral evidence in court.

79. Towards the end of his evidence in chief, it became quite clear that Dr King maintained the opinion expressed by him in his report that the post operative care given to the plaintiff in this case was sufficient and adequate.  He also agreed with the opinion of Dr Ah Chong that the defendant’s request for routine post-operative monitoring was reasonable given that the operation was relatively straightforward.

80. Dr King went on to elaborate that gauged against the standard adopted by himself when performing neck surgeries, whether it be a thyroid surgery or straightforward simple carotid body tumour he had not routinely sent his patients to intensive care nor had he ordered specific more intensive post-operative monitoring.  Therefore gauged by his own standard, he honestly had to agree that the post-surgery care received by the plaintiff was appropriate and sufficient.

81. He qualified that by saying that if there were signs and warning signals that something amiss were happening, then of course the level of monitoring could be increased.

82. Having stated that qualification, he then went on to say that his opinion that the post-operative care given in this case was appropriate and sufficient was made with the facts of this case (as known to him) in mind.

83. One further matter stated by Dr King in his oral evidence given in court was that the surgeon who performs the operation would be the best person and in the best position to decide whether more intensive post operation monitoring of the patient should be necessary and in the present case, if there were more firm signs observed from the plaintiff it is possible that earlier detection of the stroke could be made.

84. There was no cross-examination of Dr King by the plaintiff’s counsel.

Conclusion on issue of liability

85. It is at once apparent from the above, especially in view of the concessions made by the plaintiff’s two experts, Professor Poon and Dr King, that there can be no question but that there was no sub-standard practice on the part of the defendant, whether during the pre-surgery investigation, during the surgery itself or at the post-operative care stage.

86. In the light of those concessions made by the plaintiff’s experts, it is not even necessary for me to go into any detail the reports or the evidence given by the defendant’s experts, Dr Ah Chong Ah Kian and Dr Lam King Hing suffice it to say that they were also of the opinion that there was no sub-standard practice on the part of the defendant in his treatment, management as well as after care of the plaintiff.

87. Perhaps this would be as good a time as any for me to remind legal practitioners particularly those handling medical negligence cases that the proper criteria and applicable standard of care for medical negligence is as set out in the words of McNair J in the case of Bolam v. Friern Hospital Management Committee.  In order to satisfy the duty in tort, the standard of care and skill to be attained is that of the ordinary competent medical practitioner, exercising an ordinary degree of professional skill.  Although the standard is a high one, a medical practitioner charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice.  A medical practitioner :

“…is not guilty of negligence if he has acted in accordance with practice accepted as proper by a reasonable body of medical men skilled in that particular art….merely because there was a body of opinion who would take a contrary view.”

88. In the present case, there was not even a different body of opinion who took a contrary view to what was done by the defendant.

89. However, there are instances in Professor Poon’s evidence which suggest that he was wholly oblivious of the criteria and standard of care applicable in a medical negligence case as stated above when he said in cross-examination the following :

“When we are examining a case for any routine audit, we always look at the scenarios and look at areas where we could improve to avoid the complication happening again if there was a fresh case.  So this is — I am applying a similar principle to this.  I’m not particularly focusing on justifying my — what you suggest to justify more intensive post-operative monitoring.  I’m just — in here, I’m focusing on seeing what is — what could be avoidable.”

And further on :

“	Q.	Yes.  To apply that to this case, you have no criticism, as you have confirmed, about the intra-operative care.  And therefore, if Dr. Yip [defendant] is not concerned about the manipulation during the operation, there was not a reason to order more intensive post-operative observation.
	A.	That would be interpreted.  Yes.
	Q.	That would be the result.
	A.	Yes, yes.  But may I also provide information for the Court that most of the material incidents do not have one single negligent factor.  Most of the medical incidents come about at the combination of two or three factors.  So, I’m thinking of, like doing any surgical audit, to state the factors that may contribute to avoiding this incident.”

90. If that was the approach adopted by Professor Poon, then it is not surprising to see why this case started off on a completely wrong footing (for it is Professor Poon’s expert evidence that the plaintiff’s case was mainly founded on) and ended up after trial with not the slightest bit of evidence of negligence on the part of the defendant.

91. It is therefore just as important for legal practitioners to ensure that the experts instructed in medical negligence cases giving expert evidence on the issue of liability are fully aware of the criteria and standard that has to be applied in such cases.

92. In view of all the evidence that has been adduced in this case, there can be no other conclusion for me to come to but that the plaintiff’s claim must be dismissed.

Costs

93. There will be a costs order nisi that the plaintiff pays the costs of the defendant, to be taxed if not agreed.

94. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.