YEUNG KWOK WO v. HOI HING STEEL FIXING WORKS CO AND OTHERS

HCPI 136/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 136 OF 2004

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J U D G M E N T

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1.  The plaintiff, Mr Yeung, met with an accident at work on 26 February 2001, at a construction site at the Tung Chung Station Development on Lantau Island.  Mr Yeung was working as a steel binder.  He was struck by a falling wooden batten.  He suffered personal injuries for which he claims damages.

2.  Mr Yeung was employed by the 1^st defendant.  There was the usual sub-contractor chain.  The 1^st defendant was a sub-contractor to the 2^nd defendant, which was in turn a sub-contractor to the 3^rd defendant, which was in turn a sub-contractor to the 4^th defendant, the main contractor.  The 5^th defendant was a board nailing sub-contractor, and the 6^th defendant was a scaffolding sub-contractor to the main contractor.  The 6^th defendant was responsible for the scaffolding and its safety nets. 

3.  The 2^nd defendant gave no notice of intention to defend and judgment on liability was entered against it on 4 March 2005.

4.  At the commencement of the trial, the 1^st, 3^rd, 4^th and 5^th defendants admitted liability.  The insurers of the other defendants took over the conduct of the case of the 1^st defendant.  The plaintiff discontinued his claim against the 6^th defendant.  The contribution notices of the 1^st and 3^rd to 5^th defendants were withdrawn, as was that of the 6^th defendant against those defendants.  What remained for trial were the issues of quantum.  In addition there remained an issue as to whether the plaintiff should pay the costs of the 6^th defendant or whether those costs should be paid by the other defendants under a Sanderson or Bullock order. 

Quantum

5.  The plaintiff was born on 17 August 1950.  At the date of the accident he was 50 years old.  At the date of trial he was 56.

6.  At the time of the accident, the plaintiff was squatting on the ground.  He was struck on the left side of his back by the falling wooden batten.  He suffered multiple left lower ribs fracture with a splenic rupture.  Emergency laparotomy and splenectomy were performed.  The plaintiff remained in hospital until 13 March 2001.  He was on sick leave until 26 September 2002 and thereafter for a further 20 days so that the total sick leave period was about 20 months. 

7.  The plaintiff suffered from abdominal complications following the laparotomy.  He was admitted to hospital twice in 2003 with post-laparotomy adhesive obstruction.  He says that he suffers ongoing symptoms of difficulty in the intestinal tract.  

8.  He also suffers from a hypertrophic laparotomy scar which required regular kenacort injections for about a year and a hospital admission in 2003 for excision of the scar.  He says that he has to wear a pressure garment over the scar. 

9.  The plaintiff has not been employed since the accident.  He says that because of his ongoing disabilities he is unable to return to work as a steel bender. After his sick leave period ended, he undertook training and obtained a watchman's licence.  He applied through the Labour Department to work as a watchman, a cleaner, or a fast-food worker.  But he was unsuccessful.

10.  The plaintiff’s own orthopaedic expert, Dr Wong See Hoi examined him on 22 December 2004.  Dr Wong considered that the left chest pain of which the plaintiff complained was in keeping with the state of post-ribs fractures associated with persistent soft-tissue inflammation.  The left shoulder discomfort was genuine and consistent with localised soft-tissue inflammation.  He also referred to the keloid scar.  Dr Wong considered that the plaintiff’s condition was probably permanent.  The plaintiff was expected to have residual pain over his left chest and shoulder particularly on exertion.  He could no longer work as a steel bender but could do moderate work such as that of a security guard, cashier, waiter or office messenger.

11.  The defendant's orthopaedic expert, Dr Lau Man Tsang Richard examined the plaintiff on 16 June 2004.  He considered that the fractured ribs and tender scar were probably responsible for the persistent rib pain, back pain and abdominal scar pain of which the plaintiff complained.  These may also affect the ability to lift heavy objects.  The other complaints and disabilities mentioned by the plaintiff, including headache, dizziness, swollen and painful abdomen, frequent running nose and coughing, numbness and weakness of the lower limbs and lung discomfort after eating were either subjective complaints or too far-fetched to be related to the injuries. 

12.  Dr Lau also considered that the plaintiff would have difficulty in resuming his pre-accident work, one of the heaviest jobs on construction site, but he was fit enough to work as a general labourer or general cleaner on a construction site. 

13.  Estimates of whole person impairment at 11% are not regarded as helpful by the courts, but Dr Wong gave a figure of 11% as against a figure of 4% given by Dr Lau.  Dr Wong seems to have regarded the scar as permanent.  It counted for 5% of the whole person impairment.  Dr Lau on the other hand considered that the scar would take about two years to stabilise and mature from the time of the operation in 2003. 

14.  Dr Wong considered that the period of sick leave from 26 February 2000 26 September 2002 is reasonable whereas Dr Lau considered that six months should have been enough.

15.  Dr Wong left consideration of the abdominal complaints to an expert in that field, whereas Dr Lau seems to have discounted them.  The plaintiff obtained an opinion from a general surgeon, Dr Angus C W Chan, on this.  Dr Chan noted that the plaintiff had suffered from two attacks of post-laparotomy adhesive intestinal obstruction which had required admission to hospital.  He still had persistent symptoms suggesting difficulty in the intestinal transit.  These might be due to adhesions or kinking of intestinal loops after the first operation.  Further investigation e.g. with barium meal should be carried out.  The symptoms would prevent the plaintiff from taking a normal solid diet as before and require life-style adjustment to reduce the symptoms.

16.  Dr Chan also considered that the intestinal problems and the scar may interfere with the plaintiff’s ability to work as a steel bender. 

17.  There is a report from a medical officer at the South Kwai Chung Psychiatric Centre dated 4 October 2005.  The plaintiff was diagnosed with “Adjustment Disorder: Chronic Depressive Reaction” and put on antidepressants from August 2004 to March 2005.  The plaintiff’s poor marital relationship was seen as likely to be a major contributing factor to his depressive symptoms which started in January 2004.

18.  In evidence, the plaintiff complains of a range of persistent symptoms.  He complains of pain and tenderness at the site of the injury as well as in the left shoulder and neck.  He suffers from tightness at the laparotomy scar, and continues to required to wear a pressure garment.  He also has ongoing bowel problems.

19.  In addition, the plaintiff complains of dizziness, eye problems, coughing and a running nose, reduced sexual ability, ringing in his ears, and urinary problems following the accident.  He also says that he has psychiatric problems, and that his marriage failed and he was divorced because of the accident. 

20.  Many of these complaints are simply not supported by medical evidence.  Many of them were mentioned to both experts though some were not.  Some of the complaints could never sensibly be regarded as having been caused by the accident.  I refer in particular to the headaches and ringing in the ears and the urinary tract problems.  There was no head injury, and although a brain scan was done in January 2002 to investigate the headaches, it showed normal findings. 

21.  The medical report from the Hospital Authority, dated 22 August 2002 gives the opinion that the headache is unlikely to be directly caused by the accident and its associated physical injury.

22.  There is no mention of tinnitus (ringing in the ears) in any of the medical reports and the plaintiff says that this came on two years after the accident. 

23.  As to the urinary tract problems, the plaintiff says that these came on shortly after the accident and he associates them with his bowel problems.  However there is no mention of this in the report of Dr Angus Chan.  In any event urinary tract problems such as those of which the plaintiff complains are common in the middle-aged male.

24.  It seems to me that the plaintiff’s own evidence of his continuing problems is exaggerated in that he has decided that everything which is wrong with him stems from the accident.  I think his own evidence must be disregarded to a considerable degree and reliance placed on the expert evidence where the experts agree.  Where they do not I tend to prefer the evidence of Dr Lau because his view that many of the plaintiff’s complaints are subjective or to remote to be related to the accident is borne out by the fact of the exaggeration of the plaintiff’s own evidence.

25.  As to the length of sick leave, I note that the plaintiff, when asked how long he thought he needed before he could go back to work, replied that he always intended to work, but first must cure his ailments.  Given that the plaintiff thinks that his ailments are worse than they really are, and that some of them stem from the accident when they really do not, I am inclined to accept Dr Lau’s estimate of a reasonable sick leave period of 6 months for the injuries caused by the accident.  Further time would however have to be allowed for the scar operation and the hospital admissions for intestinal obstruction.

26.  I do not, incidentally, see that the plaintiff’s failure, if failure there was, to seek further investigation of his bowel problems, e.g. by barium meal X-rays can be regarded as failure to mitigate.  It is not clear whether Dr Chan actually advised the plaintiff to have such investigations done, and if it were really necessary one would have thought that some doctor, among the many the plaintiff has been seeing for his various ailments, would have sent him to have them done.  In any event, if such investigations had been done, as Dr Chan suggest, in order to define the symptoms objectively, it does not follow that that would have made any difference.  Even if a further operation had been done, that in itself would have carried a risk of further adhesions.

PSLA

27.  I accept that the plaintiff suffered from fractured ribs and a ruptured spleen which required a laparotomy.  The ribs were the major injury, which has produced most of the continuing disability; the loss of a spleen seems to be relatively unimportant.  But that loss required laparotomy and the operation in turn gave rise to a hypertrophic scar which did not respond to treatment and required a further operation.  I accept that this too contributes to the continuing disability, though I am inclined to accept Dr Lau’s evidence that it should have resolved itself by now.  In any event, I accept, on the basis of what both orthopaedic experts agree, that the plaintiff can no longer work as a steel bender but could work as a watchman, cleaner or something of that sort. 

28.  I accept the evidence of Dr Chan on the abdominal problems though I doubt that they are as bad as the plaintiff says.  If they had been, he might have sought further investigative treatment, which he did not. 

29.  As to the sexual problems complained of I can accept that these arose because the plaintiff was generally suffering from pain and discomfort.  The plaintiff says that he and his wife asked for a divorce because they were both suffering, but marital breakdown and divorce are not inevitable in these circumstances.  I think they are really too remote to be included.

30.  No medical basis can be found for the other complaints and I think they must be disregarded.

31.  Mr Lam, for the plaintiff, argues for an award of $500,000 under this head, and Mr Sadhwani, for the defendants, for $300,000.  I have been referred to various cases.  It is difficult to compare like with like, though I think they are all in the same general area as regards the seriousness of the injuries concerned.

32.  Mr Lam refers in particular to Lam Wai Chun v Tam Chi Wai & Anor, HCPI 1352 of 2000, in which the plaintiff suffered rib fractures, but also suffered psychiatric problems.  He refers to Lam Foo Yan v Pun Wai Hong [1999] HKLRD I 15, but that case was concerned with much more serious intestinal injuries than are concerned here.  Mr Sadhwani refers to Lam Yan Foo also, and to Kwong Yui Hung v Wong Fat Kan[2002] 1 HKLRD 725, another case where the injuries were not really similar, but no doubt in the same category of seriousness.  He refers to Lee Yuen Ngan v Lau Wing Hop, HCPI 223 of 1999 and to Teng Wei Yan v Kwok Kai Wing & Ors, DCPI 54 of 2005.  Both counsel refer to Chung Chun Man v Chow Wai Kin & Ors, HCPI 713 of 2004, where the plaintiff suffered fractured ribs and lacerations to the liver, rather than the spleen. 

33.  Taking into account the plaintiff’s injuries and my findings on his current condition set out above, I think a proper figure here is $400,000.

Loss of earnings and MPF

34.  According to the plaintiff’s witness statement he earned $1,150 per day or about $23,000 per month.  This would mean 20 days’ work per month.  This is the basis of the claim pleaded in the Revised Statement of Damages.  Under cross-examination the plaintiff, when asked how many days he worked, gave the common answer “twenty-odd” and when I asked him to be specific he said that would work 22 or 23 days per month. 

35.  The evidence of Mr Kwok Ngan Hoi, the owner of the 1^st defendant, is that he did indeed pay $1,150 and that the defendant worked for about 20 days per month.  As employer he paid MPF contributions of $30 per day.

36.  The plaintiff’s increased estimate is inconsistent.  I will take the pre-accident earnings as $23,000.  As I have indicated I accept that a period of sick leave of 6 months would have been reasonable.  A period of 3 months in addition should be allowed for the plaintiff to find the kind of work that he was then able to do, e.g. watchman, cleaner, or the like. 

37.  Although Mr Kwok agrees that he was paying the plaintiff $1,150 per day pre-accident, in 2001, he says in his witness statement, which he adopted as evidence, that “due to economic turmoil in 1997” the business had been going downwards so that by the date of the statement (June 2005) the wage as down to $800 at most. 

38.  In oral evidence that Mr Kwok said that after 2002 the wage for a steel bender decreased to $800 per day.  He also said that pre-1997, it was $1,150 to $1,200.  All this is inconsistent; if the wages went down because of economic turmoil in 1997, as many wages did, how did he manage to pay the plaintiff $1,150 in 2001?

39.  Mr Kwok was referred to documents from the Hong Kong Bar-Bending Contractors’ Association Ltd which recommended a daily wage of $1,200 per day in 2001 and 2003.  He said that this was just a recommendation, and that actual situation in the trade, allowing for competition, was that he could only pay $800 per day at the present time.  Perhaps a trade-union recommendation is not of much value, but Mr Kwok could not explain the figures of  the Census and Statistics Department, also shown to him, which showed the wages for steel benders between April 2003 and January 2005 as decreasing from over $1,300 to about $1,200 per day. 

40.  Granted that these are figures from public sector construction projects, it appears that the Tung Chung Station Development was just such a project.  I find Mr Kwok’s evidence difficult to accept, because of the inconsistency and because it does not accord with the Government statistics.

41.  I do not see why, if the plaintiff had been able to return to work and continue working up to date as a steel bender, he should not have been able to make $1,150 per day, as before. 

42.  The plaintiff says that he has been unable to find work.  It is argued that he should be regarded as unemployable following the accident, having regard to his age, lack of education, lack of experience in any other field and his various disabilities which require him to apply for sick leave more than once in a week. 

43.  I do not agree.  The experts are agreed that he would be able to work as a watchman or cleaner.  Insofar as the fact that he often takes sick leave might put a potential employer off, given that most of his complaints now do not appear referable to the accident, I do not see that it must be assumed that he is unable to find work because of the accident.  

44.  As to what the plaintiff could have made if he had found work as a watchman or cleaner, I note from the March 2003 Government statistics produced that the average monthly wage for a male general worker was about $8,000.  But for a cleaner, it was around $5,500.  I cannot see a watchman being paid much differently.  I will base calculations on that figure.

Pre-trial loss

45.  The pre-trial period is 68 months.

46.  I accept that the plaintiff could reasonably have expected 6 months sick leave and I would allow him a further period of 3 months to find work.  He had to have a further operation on his scar, and would need time to convalesce.  He also had two hospital admissions because of his intestinal adhesions.  I would allow 12 months total loss at $23,000 i.e. $276,000 plus $12,000 for MPF to make a total of $288,000. 

47.  Thereafter, assuming that the plaintiff could have got work as a cleaner at $5,500 he would have had a loss of $17,500 for 56 months i.e. $980,000.  To this falls to be added a further 5% for MPF, i.e. $49,000 to make a total of $1,029,000.

48.  Income tax must be allowed for.  It is true that the plaintiff says that he was not paying tax, even after having been considered by the Inland Revenue Department but this seems unlikely; if he was earning $23,000 he would have been liable for some tax.

49.  If the plaintiff made $276,000 p.a. then applying the married person’s allowance of $210,000 this would give a chargeable income of $66,000.  He had a son born in 1983 or 1984 and I will assume, in the absence of evidence, that by 2001 the son would not have been a dependent.  Applying 2% to the first $30,000, 8% to the next $30,000 and 14% to the next $6,000 would give a tax liability of $3,840 per year.  This figure would fall to be deducted in respect of the first 12-month period of total loss of earnings.

50.  If tax is calculated on the partial loss of earnings at the rate of $17,500 per month, allowing for the same married person’s allowance, there would be no tax liability.  Once the plaintiff was divorced on 22 April 2004, he would only have a personal allowance of $130,000 p.a. and I calculate that his tax liability would be $5,600 p.a.  This would give a tax liability from 22 April 2004 to the date of trial of  $12,271.

51.  Mathematical exactness and accuracy are not required in assessing the deduction to be made on account of tax; British Transport Commission v Gourley[1956] AC 185.  My calculations are rough; I did not carry out the calculations that an accountant might have carried out, and I may be inaccurate.  In any event the figure is not great.  I calculate a total deduction of $16,111; say a round figure of $16,000.

52.  The total award for pre-trial loss of earnings is therefore $1,013,000.

Post-trial loss

53.  The net loss is $17,500 per month.  Allowing plus 5% for MPF, minus $466 for tax will give a multiplicand of $17,909, rounded down to $17,900.

54.  Mr Lam argues for a multiplier of 7 on the basis that the plaintiff is now 56 and would have been able to work as a steel bender until age 65.  He refers to various comparable cases, which I do not need to list here.  Mr Sadhwani relies on evidence of Mr Kwok that he did not employ any steel benders over 60, except one who drew plans, managed people and did little physical labour.  He says that the plaintiff could only have worked until about 60, because the work is physically demanding, so the usual criteria do not apply.

55.  The plaintiff himself says that he could have worked until 65 if his health had been good.  He agreed that the work was physically demanding and that a lot of men retired early because business in the construction trade was not good; but, he said, others with family burdens might work until 70.

56.  I do not see why it should be assumed that a steel bender, who has been in the job for 30 years, could not continue until 65.  I accept the plaintiff’s evidence that he could have worked to that age if his health had been good.  But for the accident, it would have been good enough.  I will allow a multiplier of 7.

57.  The post-trial award is $17,900 x 12 x 7 = $1,503,600. 

Loss of earning capacity

58.  There is a claim for 12 months’ earnings for loss of earning capacity.  In fact the plaintiff has not been employed post-accident.  If he were working, it would be necessary to show a substantial or real risk that he would lose his job: Moeliker v Reyrolle & Co. Ltd [1997] 1 WLR 132.  As it is, he is not working.  If he were to get work as a watchman or cleaner, it is difficult to see what risk there might be of his losing that job.  I do not think there is any room for an award under this head.

Special damages

59.  The plaintiff prepared a long list of his various medical expenses, amounting to $22,707, and travelling expenses amounting to $10,799.20.  Most of these claims were not supported by any documents.  Mr Sadhwani went through the list with a fine-toothed comb, to separate out those claims which did not relate to illness or disability resulting from the accident.  He calculates that $1,196 of the medical expenses and $1,936 of the travelling expenses were referable to the physical disabilities resulting from the accident.  He says that the plaintiff is not entitled to Chinese herbal treatment, as this did not aid his ailments.  There is also a claim for tonic food of $45,000 which he says is excessive.  Other claims, such as that for medical appliances are not supported by evidence; and as to such things as photocopying, that would be a matter for the plaintiff’s solicitors.

60.  On my findings above as to what injuries and continuing disabilities were caused by the accident, I agree generally with Mr Sadhwani.  However I would allow $5,000 for tonic food.  I will award a total of $14,400 for the special damages.

Result

61.  The awards are as follows:

PSLA	$400,000
Pre-trial loss of earnings (adjusted for tax and MPF)	$1,013,000
Post-trial loss of earnings (adjusted for tax and MPF)	$1,503,600
Special damages	$14,400
Total	$2,931,000

62.  The plaintiff will give credit for the Employee’s Compensation award of $619, 726.  The plaintiff will therefore have judgment against the 1^st, 2^nd, 3^rd, 4^th and 5^th defendants for $2,311,274.

63.  Interest is awarded on the total special damages at half the judgment rate from the date of the accident until the date of judgment.  Interest is awarded on the PSLA award at 2% from the date of the writ. 

Costs

64.  The plaintiff must obviously have his costs against the 1^st to the 5^th defendants.  But what about the 6^th defendant, against whom the plaintiff discontinued his claim at the last minute?

65.  There are three possible ways to deal with this situation.  The first alternative is for the losing defendants to be ordered to pay the successful defendant’s costs; the “Sanderson order”; see Sanderson v Blyth Theatre Co. [1903] 2 KB 533, CA.  The second is for the losing defendants to be ordered to reimburse the plaintiff, who is to pay the successful defendant’s costs; the “Bullock order”; see Bullock v London General Omnibus Co. [1907] 1 KB 264, CA.  The third is for the plaintiff to pay the successful defendant’s costs.

66.  I do not think there is any dispute on the law.  The question is whether it was reasonable for the plaintiff to join the 6^th defendant.  If it was, the unsuccessful defendants may be ordered to pay the 6^th defendant’s costs.  See Mulhern v National Motor Cab Co.(1913) 29 Times LR 677; Vine v National Motor Cab Co. (1913) 29 Times LR 311; Besterman v British Motor Cab Co. Ltd [1914] 3 KB 181 and in particular the words of Vaughan Williams LJ at 184: 

“The proper way is - do not join any defendant unreasonably; if the facts are such that it is reasonable to join them both and reasonable to be in a state of uncertainty as to which of the two is the really guilty one, then it is part of the reasonable costs of the action that the costs of the action which you have launched against one of those defendants, and who has succeeded in defending himself, should be borne by the man who is to blame.”

67.  Here the plaintiff was in the classic situation which gives rise to res ipsa loquitur; he was innocently doing his work when something fell on him from a height and injured him. By inference, the accident came about because of someone’s negligence in the absence of an acceptable explanation consistent with reasonable care on that person’s part.  The problem was that no one, least of all the plaintiff, knew who that person was; no one knew who was in control of the batten.  That, however, would not preclude the operation of res ipsa loquitur reasoning; see the judgment of Bokhary PJ in Sanfield Building Contractors Ltd v Li Kai Cheong, FACV 16 of 2002 at paragraph 28. 

68.  As I have indicated, no one knows how the batten came to fall.  Indeed, that what hit the plaintiff was the batten is itself a matter of inference; no one saw what hit him, but the only thing lying about which might have done was the batten.

69.  The best information that any of the parties had was contained in the accident report dated 11 May 2001 and compiled by Mr Ko Siu Fai, an occupational safety officer of the Labour Department.  From the declarations of the witnesses he interviewed it appears that the accident happened at about 9 a.m. on 26 February 2001.  The plaintiff had been assigned to do bar-fixing work at the ground floor of a proposed club house on site.  He was working about 7 metres away from the scaffolding, opposite to a material hoist installed at the external wall of the building close to Flats C of Block 2.  He was struck on the left back, while squatting.  No one saw the impact, but the batten, about 10.5m x 4.5cm x 122cm was found in close proximity immediately after the plaintiff was heard to cry out.  Two openings had been cut into the safety netting to allow a crane to be raised.  It was reasonable to infer that the batten fell from one of the openings.

70.  From one of the witness statements taken, it appeared that the 6^th defendant’s foreman had received an instruction from the chief supervisor on site to close the openings, but only at about 9.20 a.m. on the day of the accident.

71.  Mr Ko gave evidence as to how he thought the accident had happened; in brief, it was that the batten might have bounced down between the double rows of scaffolding, then come out at the opening in the net at the 16^th floor and fallen down between the catch fans.  The relatively large horizontal distance between the safety netting and the plaintiff’s position is explained by the possibility that the batten hit the ground and bounced up before falling on to the plaintiff.

72.  However, Mr Ko could not be sure that the batten came through the opening in the safety netting.  He said that it could also have come from the top floor, or it might have fallen when someone was transporting goods; or someone might have thrown it away.

73.  Mr Ko was not, strictly speaking, an expert, or at any rate he was not presented as such, though he would necessarily have got some experience of falling objects in his work.  But at the end of the day, his evidence was really no more than educated guesswork.  He could not be sure of where the batten came from, or how it came to fall.  Nor did he know who had control of it.

74.  There was some indication in the statements Mr Ko collected that no materials were being moved at the relevant time, and that the scaffolders themselves did not use this kind of batten.

75.  Mr C K Wong, for the 6^th defendant, argued that the origin of the batten could not be ascertained and there was nothing to link it to the 6^th defendant.  There was nothing to indicate liability.  The plaintiff should not, therefore, have joined that defendant.  Mr Sadhwani, for the other defendants, adopted this argument.  He said that the evidence of Mr Ko could not be relied on and his piling of inference on inference produced an outcome which was too far-fetched.  Further he drew attention to the evidence collected by Mr Ko that scaffolders did not use battens, and that no materials were being moved.  Further, it was not up to Yau Hop to close the openings in the safety nets, until instructed to do so; they were not at fault in leaving the gaps open until then.

76.  Mr Sadhwani continued that the batten must have come from the building structure, and therefore it was right to join the 1^st to the 5^th defendants, but not the 6^th against whom there was no evidence.  He also drew attention to the fact that the other defendants did not plead negligence against the 6^th defendant.

77.  It seems to me that the plaintiff, who had been injured as a result of, on the face of it, the negligence of some person, could reasonably go against all the persons, or all the employers of persons, who might have been at fault.  He, or at any rate those advising him, would know that all those employers, and their insurers if they were insured, would be concerned to escape liability for themselves, by shuffling it off on to the others.  It would not be fair to him, as an innocent victim, to say that he must take the risk of selecting whom to sue, at the risk of losing in costs if he sued the wrong defendant.  It would only be unreasonable to join an employer whose employees could not, under any circumstances, have been at fault.

78.  I do not see that the 6^th defendant could have been ruled out on the basis of anything in the accident report.  It is said that there would be a continuing duty on the plaintiff to have regard to whom it should sue, so that once the statement of the foreman Chan Shing was disclosed that should have led him to discontinue.  It is true that this statement contains exculpatory matter such as confirmation that no scaffolders would work on the scaffolding, from when the crane was being raised until when the main contractor instructed that the openings in the safety nets be closed, that the scaffolders did not use battens, and that it was the duty of the main contractor to remove garbage and debris from the scaffolding; but if there was a continuing duty I do not see that it would be incumbent on the plaintiff to accept the truth of an exculpatory statement by 6^th defendant’s foreman, so as to make him discontinue against that defendant.

79.  I do not see that the attitude taken by the other defendants towards the 6^th defendant’s fault would be relevant either.  It seems that the decision in Besterman which rules out “the idea of the right to ask the question, ‘Are you going to blame your co-defendant’” would make it unnecessary for the plaintiff to have regard to what was pleaded or not pleaded by the defendants against one another.

80.  In fact, once the plaintiff knew, at the start of the trial, that the other defendants were accepting liability, he took the reasonable step of discontinuing against the 6^th defendant.  I do not see how he could have done that beforehand, lest it came out in evidence that some blame attached to the 6^th defendant.  In the circumstances of this case, someone pretty much had to accept liability, because there was a prima facie case of negligence, and no one was in a good position to rebut it.  No doubt if the other defendants had accepted liability before the start of the trial, the 6^th defendant would have been let out earlier.  To the extent that the other defendants delayed in so doing, they are the authors of their own misfortune.

81.  It seems to me that it was reasonable for the plaintiff to join the 6^th defendant and to maintain its claims against the 6^th defendant until the other defendants admitted liability.  A Sanderson order is proper.  I order that the 1^st to the 5^th defendants pay the plaintiff’s costs of the action and the 6^th defendant’s costs also.