CHENG CHEUNG KAI v. WAI SAI KWONG AND ANOTHER

HCPI 332/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 332/2003

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J U D G M E N T

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1.  These actions arose out of a collision which occurred on 4 August 2003 on Wan Po Road, Tseung Kwan O.  The plaintiff, a male then 50 years old, was employed by the third party as a worker on a site where various construction works were being carried out.  The plaintiff was crossing a road when he was struck by a vehicle driven by the defendant.  He was injured.

2.  The plaintiff instituted proceedings against the defendant for damages which he sustained consequent upon the collision.  He alleged that the cause of the collision was the negligent driving of the defendant.  He did not institute proceedings against his employer, the third party.

3.  The defendant filed a defence to the plaintiff's action in which he denied that the collision was caused by his negligence.  He alleged that it was caused solely, in the alternative, that it was contributed to by, the negligence of the plaintiff.  As a further alternative the defendant averred that the collision was caused solely, or that it was contributed to, by the negligence and/or a breach of common duty of care and/or breach of contract of employment by the third party its servants all agents.

4.  The defendant issued a third party notice which was ordered to stand as his statement of claim against the third party.  The allegations of negligence were denied by the third party.  The third party counterclaimed against the defendant for the amount of an employee's compensation award and costs which had been made against it: it alleged that the collision was caused solely by the negligence of the defendant or, alternatively by the joint negligence of the plaintiff and the defendant.  In due course it was ordered that the defendant's claim against the third party and the third party’s counterclaim be tried at the trial of the action, but immediately thereafter.

5.  The matter was set down for trial to commence on 8 December 2004.  On the first day of trial the plaintiff and defendant presented a consent summons which they asked be made an order.  That summons contained the terms of a settlement concluded between them.  The plaintiff and the defendant had agreed, inter alia, that the plaintiff had suffered damages in the sum of $1,922,758.56.  They also agreed that the plaintiff's negligence had contributed to the collision to the extent of 40%.

6.  There were aspects to the proposal which potentially affected the third party. As inexplicable as it may seem, it transpired that the third party had not been invited to participate in the settlement discussions at any stage and, indeed, was unaware of the conclusion of the settlement until the morning of the first day of trial.

7.  As a consequence, the matter was adjourned to the following day.  The third party then adopted the quantum of the plaintiff's claim as previously agreed between plaintiff and defendant.  The quantum of the counterclaim by the third party was agreed by the defendant in the sum of $877,416.04.  The trial proceeded as between the defendant and the third party, with the plaintiff and the defendant each giving evidence in the course of the defendant's case.  The third party elected to close its case without calling evidence.

8.  The issues which remain are these:

8.1    is the third party, as employer of the plaintiff, liable to him with the consequence that it should pay a contribution towards the damages the defendant has paid the plaintiff? To establish that liability, the defendant has to establish that the third party owed the plaintiff a duty of care; that it had breached that duty; and that such a breach had caused, or contributed to the cause of, the plaintiff's injuries;

8.2    if the third party is found liable, is it precluded by virtue of the provisions of section 25 of the Employee's Compensation Ordinance from recovering from the defendant?; and

8.3    is any amount which the third party might be entitled to recover from the defendant subject to reduction by an amount equivalent to the percentage of the plaintiff's contributory negligence?

The evidence

9.  Wan Po Road runs approximately east to west.  Approaching the construction site and the area where the collision occurred it runs gently downhill.  Some considerable distance to the east of where the collision occurred the road comprises three lanes in the westbound carriageway, which is separated from the eastbound carriageway by concrete centre divider.  Closer to the scene of collision on the westbound carriageway the three lanes are separated by road markings as follows: the lane closest to the centre divider is separated from the middle lane by a double continuous white line - the lane closest to the centre divider leading solely to a flyover which passes over the roundabout; the middle lane is separated from the left most lane by a continuous white line with a broken white line on the side of the left most lane - both of these lanes lead down beside the flyover to the roundabout.  Shortly prior to the scene of the collision there is a road which joins Wan Po Road from the south, access to and exit from which is provided by the left most lane widening for a short distance to provide an area into or from which vehicles may filter: at the intersection itself there is a significant triangular traffic island.

10.  The flyover carries one lane of traffic in each direction whereas that portion of Wan Po Road which leads down to and, correspondingly on the opposite side of the flyover, up from, the roundabout carries two lanes of traffic.  At the point where Wan Po Road divides to continue over the flyover and to descend to the roundabout there is, marked on the road, a hatched area.  From this point that portion of Wan Po Road that traverses the flyover continues more or less on the level whilst the lanes that descend to the roundabout show a substantial increase in the previous gentle decline.

11.  The plaintiff's case was that he had walked up the south side of Wan Po Road, for reasons to which I shall return shortly, in an easterly direction to the point where the flyover commenced.  He then crossed the filter lane, the left most lane and the middle lane of Wan Po Road and reached the hatched area at the commencement of the flyover.  When he reached that point he came to stop.  The defendant agrees that when he first saw the plaintiff he was standing in the hatched area.

12.  It is not in dispute that it had been raining quite heavily immediately prior to the collision; that the surface of Wan Po Road was wet; that the lighting conditions were "gloomy" or "dim"; that the plaintiff was wearing a bright yellow raincoat with a hood and a helmet; that, at the time, traffic in Wan Po Road was light; that there were traffic cones placed in the road approaching the flyover including on the hatched area where the plaintiff was standing- some of which are just visible in the photographs at Appendix V to the plaintiff's witness statement.  The defendant says that at the time of the collision some rain was still falling although the plaintiff is somewhat equivocal on this issue: I am satisfied that it was still raining to some extent at the time of the collision.

13.  The plaintiff relates what happened next in the following terms:

I stopped for a while at the aforesaid white hatched area at the flyover along Wan Po Road, and looked out from both sides of the road to see if any vehicles passed by and then prepared to cross over to the other side of the road.  As the area around the flyover of Wan Po Road is a straight road, therefore, even it rained from time to time, if there was a car coming from a distance towards the direction of the flyover, I would have noticed it.  When I ascertained that there was no vehicle coming towards the direction of the flyover, I did not hear the sound of a horn or see a flashing light from any vehicle, I then prepared to walk across the various lanes on the flyover to go to the other side of the road to search for arrows signs.  …

Whilst I was walking from the aforesaid hatched area... at a normal walking pace, I was suddenly knocked down.  I lost consciousness and fainted on the road.

14.  When the plaintiff was cross-examined he reiterated that he had checked for approaching traffic: although there were vehicles on what he described as "the next lane" there were none on the lane he crossed.  He speculated that the defendant was changing lanes at the time of the collision.  The defendant disputed that he had changed lanes at any stage asserting that, at all times, he had been travelling in the lane closest to the centre divider, it being his intention to use the flyover.  He had approached the flyover by driving along Wan Po Road. 

15.  The defendant's version of events is at variance with that of the plaintiff.  He described in his witness statement, which stood as his evidence-in-chief, how, as he approached the scene of the collision, he was travelling in the lane next to the centre divider at a speed of some 35 kilometres an hour he passed a slight right-hand bend and saw the traffic cones placed at the hatched area.  The speed limit had previously been 70 kph but reduced to 50 kph: he was travelling at 35 kph. He continued

... I saw a person standing in front of me at the far end of the white hatched area of the entrance to the flyover... at that time, that person was wearing a yellow raincoat and a yellow safety helmet.  The body of that person was then facing slantingly towards the opposite traffic lane near a traffic cone...[my vehicle] was about the distance of four vehicle lengths from that person (i.e. about 32 metres).  I immediately released my foot from the accelerator and placed the same on the footbrake... to reduce the speed from 35 kilometres per hour to 20 kilometres per hour but continue to go forward.  When [my vehicle] was about the distance of half a vehicle length from that person, that person suddenly went out slantingly at a fast pace from the white hatched area into the lane [in which my vehicle] was travelling.  I therefore immediately braked and swerved... toward the right to avoid that person.  However, since the event happened so suddenly and the distance was so close, the nearside front of [my vehicle] still hit the right waist of that person.  After the accident [my vehicle] stopped very quickly.

From the time when I first saw the injured person who was hit to the time when the injured person was hit, the injured person had never looked at the traffic from the direction [from which my vehicle] was coming.  The injured person was only standing inside the white hatched area near the [traffic] cone.

16.  His evidence was substantially in accordance with a statement which he had made to the police approximately a week after the collision: he confirmed the accuracy of the contents of that statement during his evidence in court.  He accepted that, as was shown in a sketch drawn by the police, there was a single skid mark left by one of the wheels of his vehicle on the surface of the road:  that skid mark was 5.4 metres in length.  He also said in his oral evidence that the hood of the raincoat which was worn by the plaintiff was covering the plaintiff's head at the time when he, the defendant, saw him standing in the hatched area.

17.  When he was cross-examined the defendant accepted, realistically, that at the time he first saw the plaintiff he would have had time to stop his vehicle before reaching him.  He testified that he kept the plaintiff under observation because he "thought it possible he may cross the road so [he] slowed down and watched him".  He said that by this stage the plaintiff had remained simply standing in one place for a while.  He specifically disputed that it was the right hand side of his vehicle that had collided with the plaintiff.  He testified that at the moment of impact the plaintiff was approximately 3 feet from the hatched area and not so far as the middle of the westbound lane.  He rejected the suggestion that he had changed lanes or swerved into the lane in which the collision occurred immediately prior to the collision.  He rejected the notion that he was not keeping a proper lookout or that he was travelling at speed in excess of 20 kilometres an hour, although he realistically accepted that he could not be absolutely exact on his speed.

18.  I was impressed by the defendant as a witness.  He came across during his evidence and in cross-examination as a mature, sensible man who recognised his responsibility to other road users, including pedestrians.  I did not form the impression that he was in any way seeking to minimise his role in these unfortunate events but, rather, was simply relating them as they happened.  He made sensible concessions when it was reasonable to expect him to do so.  I am satisfied that events happened in the manner in which he testified. 

19.  It may be that the defendant's vehicle was travelling slightly faster than the 20 kilometres per hour that the defendant estimated.  If it was, the defendant's estimate is simply erroneous: I am entirely satisfied that he did not seek to be untruthful on this issue.  But if he was travelling faster than 20 kilometres per hour it would have been only by a small margin.  That is apparent from the graphic newspaper photograph produced by the plaintiff which depicts him lying in the road just to the north of the continuous double white lines to be found on the flyover and just in front of the right hand corner of the defendant's vehicle.  That photograph as well as others taken of the defendant's vehicle before it was moved show that the sketch drawn by the police officer inaccurately depicts the position of, at least, the defendant's vehicle. The positions of the plaintiff and the defendant's vehicle are entirely consistent with the defendant's version of events. 

20.  Insofar as the skid mark left by the defendant's vehicle may be thought to indicate speed in excess of his estimated 20 kilometres an hour, I need observe only that the road surface was wet at the time, a fact which affects braking distances.  It is suggested on behalf of the third party that the length of the skid mark belies the defendant’s estimate of the distance between his vehicle and the plaintiff when the plaintiff entered the road: firstly, the plaintiff was walking at an angle away from the approaching lorry;  secondly, “half a vehicle length” was an estimate, not a precise measurement.

21.  I do not accept the plaintiff's evidence that he had looked about him, ensured it was safe for him to cross the road, and had then walked at a normal speed across the road only to be struck after having covered a substantial distance.  I accept the defendant's evidence that the plaintiff had been standing, with his head covered by the hood of his raincoat, with his back at something of an angle to vehicles approaching from the East, and that he had moved without warning into the path of travel of the defendant's vehicle when that vehicle was some half a vehicle's length from him.  I reject the plaintiff's evidence where it is contradicted by that of the defendant.

22.  It is plain from the photographs and the evidence that for the plaintiff not to have seen the approach of the defendant's lorry, a large vehicle as is apparent from the photographs, establishes, even on his own case, that he failed to keep a proper lookout.  This was an area with which he was familiar.  He was attempting to cross a road which, at that point, was six or more lanes in width and crossing the face of the entry to the flyover, a device which is obviously intended to carry traffic which does not need to slow down as it otherwise would if it were to use the alternative route past the roundabout.  He did this in poor weather conditions.  He was wearing the hood of a raincoat covering his head. 

23.  The defendant was not entirely blameless.  Where his conduct did fall below that of the reasonably prudent driver is that he failed to give audible warning to the plaintiff of the approach of his vehicle which, in my judgement, he should have done, in addition to all the other precautions which I accept he took, once he appreciated that the plaintiff might cross the road.  This is particularly so given the weather conditions at the time and the fact that the plaintiff was standing apparently looking away from his approach with his head partially covered. The plaintiff pleaded this failure as  aground of the defendant’s negligence.

24.  I recognise that the plaintiff and the defendant arrived at an agreement as the extent to which the plaintiff's negligence contributed towards the collision.  That agreement does not bind me in these proceedings.  On the evidence that I have heard and seen I assess the plaintiff’s contributory negligence as being 75%.

Is the third party, as employer of the plaintiff, liable to him with the consequence that it should pay a contribution towards the damages the defendant has paid the plaintiff?

25.  It has been necessary to set out how the collision occurred to determine whether there was negligence on the part the plaintiff and the defendant and also to establish whether there is evidence that the duty of care which an employer owes his employee has been breached by the third party.

26.  Lord Oaksey in General Cleaning Contractors LD. v. Christmas [1953] A.C. 180 described the nature of that duty:

… it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. It is, I think, well known to employers… that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve.  It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work.

27.  In Wilson v. Tyneside Window Cleaning Co.[1958] 2 Q.B. 110 Parker L.J considered the duty imposed upon the employer in these terms:

I think that this case is a very good example of the difficulties that one gets into in treating the duty owed at common law by a master to his servant as a number of separate duties. …

It is no doubt convenient, when one is dealing with any particular case, to divide that duty into a number of categories; but for myself I prefer to consider the master's duty as one applicable in all circumstances, namely, to take reasonable care for the safety of his men, or, as Lord Herschell said in the well-known passage in Smith v. Baker & Sons, [1891] AC 325, to take reasonable care so to carry out his operation as not to subject those employed by him to unnecessary risk.

That general duty applies in the circumstances of every case; but the governing words "reasonable care" limit the extent of the duty in the circumstances of each case. Accordingly, the duty is there, whether the premises on which the workman is employed are in the occupation of the master or of a third party, or whether the tool has been made to the order of the master or his manager, servant or agent, or is a standard tool supplied and manufactured by reputable third parties; but what reasonable care demands in each case will no doubt vary.  That, as it seems to me, is the true principle, and is consistent with the decision of this court in Biddle v. Hart. [1907] 1 K.B. 649.   [Emphasis supplied]

28.  The photographs that were produced in evidence show that this was a very extensive construction site.  It related to the construction of roads, a flyover, a roundabout and associated works in the ongoing development of Tseung Kwan O.  The plaintiff described it thus in his witness statement:

the project... was the expansion of Wan Po Road including the motorway and the two adjacent pavements.  Wan Po Road is a motorway comprising of several lanes, hence, the construction site covered a very large area.

Appendix 2 to the plaintiff's witness statement is a plan of the area.  Although no scale is apparent on the plan, when it is considered in conjunction with the various sets of photographs annexed to the plaintiff's witness statement the widespread nature of these works is self-evident. 

29.  The plaintiff, according to his evidence, was employed by the third party as a rigger.  Whilst that may be the title given to the post he occupied, his description of the work that he was called upon to carry out suggest that he held no particular position of responsibility but was what accurately may be called a general worker.

30.  His evidence was that the task that he was executing at the time when the collision occurred was to locate directional signs which were used, in conjunction with traffic cones, to direct the flow of vehicular traffic.  Earlier that day he and other workers had been required to dry an area near the site office using a blow drier in order that concrete could be laid.  That task was completed not long before the collision.  His supervisor then instructed him to "look around the construction site to search for arrow signs".  He initially searched near the site office but had been unable to find any signs.  A co-worker mentioned that there should be some signs near an adjoining construction site where a residential building was being developed.  The plaintiff accordingly set off in that direction looking for the signs. 

31.  According to the plaintiff in his oral testimony, it took him over five minutes and as long as 10 minutes to walk, in an easterly direction, from the temporary site office situate, as indicated by him, on the roundabout itself beneath the flyover to the point where the flyover commenced, where the collision occurred.  This also helps provide another indication of the overall size of the construction site.

32.  When he reached that area he was on the southern side of Wan Po Road.  He found no signs are there and consequently decided to cross to the northern side of Wan Po Road to look for signs on that side of the road.  He does not suggest that he expected to find any signs whilst crossing the road but, rather, to abandon his search on the southern side the road, cross the road and in to resume his search on the northern side of the road.

33.  It was whilst he was in the act of crossing the road at this stage that the collision occurred.

34.  The defendant says that the third party was in breach of its duty in 12 ways (the 13th particularized is a conclusion, not a ground of negligence), many of them repetitious.  I do not propose to traverse them in detail as they may conveniently be considered in two categories. 

35.  In the first group complaint is made about a lack of traffic lights, manual traffic control, pedestrian crossings, signage, safe means of access and the provision of additional employees to see the plaintiff safely across the road.  Given the nature and extent of the works, these complaints are unrealistic. 

36.  The plaintiff himself when orally supplementing the evidence which he was giving on behalf of the defendant said

The construction site was a big one so how could my employer indicate where to cross the road.  It was impossible for one spot to the arranged for crossing.  The site was too big.  If you had to walk to a specific place to cross and then walk back on the other side you would be crazy.  You can cross the road at any spot.

37.  The contentions of the defendant in this regard extend well beyond the concept of reasonable care.

38.  In the second group the particulars of negligence complain about failure to train the plaintiff adequately or to warn him of the danger involved in carrying out his work, together with the reverse of those complaints alleging instructing, causing or permitting the plaintiff to adopt a system of work which was inherently unsafe or in which the collision was foreseeable.

39.  This ignores what the plaintiff was about at the time the collision occurred.  What the plaintiff was doing when he was struck by the defendant's lorry was simply crossing a road.  If the plaintiff had been working in the carriageway, the considerations may have been different – see, for example, Moss v Thames Water Authority and Another QBD, 16 October 1981 – but he was not:  he was simply crossing the road to resume looking for arrow signs.

40.  Then there is the evidence, to which I referred earlier, of the plaintiff himself, as part of the defendant’s case in an attempt to prove negligence by the third party, that in any event he had checked for approaching vehicles before starting to cross the road.  Additionally, the plaintiff said

We would check the traffic - if no vehicles were coming we would cross, otherwise we would not.  I would cross from where ever I worked.

41.  Plainly, the plaintiff was abundantly aware of the necessity to exercise caution when crossing a road.  To suggest that there was a duty on the third party to tell the plaintiff, a 50-year-old male, to be careful when crossing the road is, simply, fanciful.

42.  The defendant invited my attention to three unreported decisions which it prayed in aid, Moss v Thames Water Authority and Another supra, YAN Chui Sim v Paul Y. ITC General Contractors Ltd and Others HCPI244/2003 and LAM Chu v TSE Lum Wong and Another HCPI626/2003.  Each is factually distinguishable from the present matter and serves only as an example of what reasonable care demanded in any particular case. 

43.  The defendant’s position is not strengthened by virtue of any of the various statutory duties or regulatory provisions to which reference was made on his behalf.

44.  In my judgement, on the facts of this matter, the defendant has signally failed to establish any breach of a duty by the third party to the plaintiff.  The third party is not liable to the plaintiff with the consequence that it is not liable to pay contribution towards the damages that the defendant paid to him.

If the third party is found liable, is it precluded by virtue of the provisions of section 25 of the Employee's Compensation Ordinance from recovering from the defendant?

45.  As I have found that the third party is not liable to the plaintiff, it is unnecessary for me to decide whether, if there were liability on its part, it would be precluded from recovering from the defendant.  However, as both counsel have addressed this issue in their written submissions, out of courtesy to them I indicate that in my view the third party would not be precluded from recovery. 

46.  This matter was addressed by HH Judge McMahon sitting as a Deputy Judge of the Court of First Instance in WONG Yat Chiu v CHAN Kwok Wa [1999]2 HKLRD 849 who followed Cory & Son Ltd v France, Fenwick & Co Ltd [1911] 1 KB 114, holding that an employer which was contributorily negligent could not proceed against a third party also liable. 

47.  The contrary view was taken by HH Judge Line sitting as a Deputy Judge of the Court of First Instance in Yardway Motors Ltd v TAM Siu Lun  [2003] 3 HKC 196.  I adopt the reasoning set out in that judgment, especially at 43 and 44.

Is any amount which the third party might be entitled to recover from the defendant subject to reduction by an amount equivalent to the percentage of the plaintiff's contributory negligence?

48.  The liability of the third party to make payment to the plaintiff arises in statute, by virtue of the provisions of section 5 of the Employee's Compensation Ordinance, Cap. 282 ("the Ordinance").  The liability of an employer to effect payment to an employee who is injured in the course of his employment is not one that is dependent upon the negligence of any party.

49.  Conversely, the plaintiff's claim against the defendant is one which is dependent upon the plaintiff establishing negligence on his part.  That the plaintiff himself was negligent is no bar to that claim but triggers the limitation of liability of prescribed by section 21(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23, which provides:

(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage: …

50.  The third party's right to seek a contribution from the defendant arises by virtue of the provisions of section 25(1)(b) of the Ordinance, which provides:

(1)     Where the injury in respect of which compensation is payable was caused in circumstances creating a legal liability in some person other than the employer (in this section referred to as the third party) to pay damages to the employee in respect thereof-

(a)   …; and

(b)   the employer by whom compensation is payable, …, shall have a right of action against the third party for the recovery of any sum which he is obliged to pay as a result of the accident, whether by way of compensation or indemnity or by virtue of any agreement made with the employee prior to the accident, and may exercise such right either by joining in an action begun by the employee against the third party or by instituting separate proceedings: Provided that the amount recoverable under this paragraph shall not exceed the amount of damages, if any, which in the opinion of the court would have been awarded to the employee but for the provisions of this Ordinance.

51.  That right, however, is limited in the same manner as is the plaintiff's by virtue of the provisions of section 27 of the Ordinance, which provides:

Where an employee … has recovered compensation under this Ordinance … in respect of an injury caused under circumstances which would give a right to recover reduced damages in respect thereof by virtue of section 21 of the Law Amendment and Reform (Consolidation) Ordinance (Cap 23), from some person other than the employer (hereinafter referred to as the third party), any right conferred by section 25 of this Ordinance on the person by whom the compensation or sum was paid, or on any person called on to pay an indemnity under section 24 of this Ordinance, to be indemnified by the third party shall be limited to a right to be indemnified in respect of such part only of the compensation, sum or indemnity paid or payable as bears to the total compensation, sum or indemnity so paid or payable the same proportion as the said reduced damages bear to the total damages which would have been recoverable if the employee had not been at fault.

52.  In this matter, the plaintiff was the beneficiary of an award made in an action which he instituted under the Ordinance in the District Court against the third party. 

53.  The full amount of the compensation awarded was deducted from the amount which the defendant undertook to pay in settlement of the plaintiff's claim.  It follows that the defendant has received the benefit of the full amount of that award notwithstanding the fact that his negligence contributed towards the plaintiff's injuries, which in turn, as a result of the Ordinance, gave rise to liability on the part of the third party, such contribution being to an extent of 25%.

54.  The third party was under a statutory duty to make payment to the plaintiff.  To require the defendant to pay a greater share of that amount than would be equivalent to the percentage to which his negligence contributed to the collision would be unjust.

55.  Consequently, in my judgment, the third party is entitled to recover from the defendant the amount which it was obliged to pay pursuant to the provisions of the Ordinance, subject to that amount being reduced by an amount equal to the plaintiff's own negligence.

56.  Whether the amount described in section 25(1)(b) of the Ordinance as "any sum which he is obliged to pay as a result of the accident, whether by way of compensation or indemnity..." properly includes costs incurred in the proceedings between the plaintiff and the third party is not a matter which I have been asked to determine, they having agreed the quantum of the third party's counterclaim.

57.  That amount was $877,416.04 of which 25% is $219,354.01.

Conclusion

58.  There will be judgment for the third party as follows:  the defendant's claim is dismissed and  the defendant is to paid to the third party the sum of $219,354.01.

59.  There is also an order nisi for the costs of the third party, as taxed or agreed to be paid by the defendant.  Liberty to restore for argument on costs or any consequential matters on notice given within seven days of this judgment.