NG SHUI SHAN v. KEEN BRAVE DEVELOPMENT LTD

HCPI 479/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.479 OF 2002

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J U D G M E N T

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1. The plaintiff, Ms Ng, was a sales executive with the defendant, Keen Brave, a company which trades in optical products.  Her job was to visit optician’s shops and take orders for spectacle frames.  In the course of her work she had to carry boxes of sample frames with her from shop to shop.  She claims that as she was doing that, on 28 February 2000 in Ma On Shan, she fell on a staircase coming down from a pedestrian footbridge and suffered injuries.  She claims damages for personal injuries caused by Keen Brave’s negligence and breach of contract. 

2. Ms Ng’s pleaded case is that in the course of her work she had to carry a bag containing three cases of sample spectacle frames with a total weight of about 25 lbs.  On 28 February 2000, as she was walking from one shop to another, down a long staircase, the bag slipped from her hand, and she lost balance and fell down two steps.  She felt pain in her neck but carried on to the next shop.  She worked for the rest of that day, and the next day; but woke up on the morning of 1 March 2000 with a stiff and painful neck.  On 24 March 2000 she was given an MRI scan which revealed disc prolapses at the C3/4, C5/6 and C6/7 levels of the cervical spine.

3. In further and better particulars, Ms Ng says that she was carrying the bag with her right hand, from which it slipped because she was tired after carrying it for two hours, and she lost her balance immediately after the bag slipped.  Various other particulars are given. 

4. She says that the accident was caused by the negligence and breach of contract of her employer in that it required her to carry too heavy a load, failed to provide equipment such as a rucksack for carrying the samples, failed to devise a safe system of work, failed to provide training and failed to warn her of danger in carrying the sample cases. 

5. An alternative case was added by amendment in October 2003.  The alternative case is that the multiple disc prolapses were caused by the continuous negligence of Keen Brave since 1997 in failing to provide a safe system of work, as particularised above; in other words, carrying the heavy load over time caused the disc prolapses. 

6. Ms Ng pleads that as a result of the accident, she was admitted to the Prince of Wales Hospital on 1 March 2000 and remained there for eight days.  An MRI scan on 24 March showed the disc prolapses.  She was granted sick leave until 15 November 2001.  Reference is made for particulars of injuries to various hospital medical reports and the report of her expert, Dr Johnson C.K. Lam dated 6 May 2002.  In brief, the injuries complained of are a sprain injury to the neck, and cervical radiculopathy caused by the prolapse at C6/C7 which resulted in pain and weakness in the arm. 

7. In later medical reports, particularly a joint report by the experts, Dr Lam and Dr Lau Hoi Kuen who was instructed by the defendant, a further complaint of carpal tunnel syndrome has come to light. 

8. This has assumed more prominence, and has been the subject of further expert reports.  It seems that it is the basis of the alternative case.  On 24 November 2003 Ms Ng gave voluntary particulars of what she was required to carry and stated that she only became aware of any damage or injury to her as a result of her work since late July 1997 to the time of the accident when the individual experts’ reports became available.   But even in further and better particulars of the voluntary particulars, there is no actual mention of carpal tunnel syndrome.  Nevertheless, Mr Cheung, counsel for Ms Ng, argues in his final submissions that “the plaintiff’s complaint is the right hand pain and weakness due to carpal tunnel syndrome”.  This is said to be caused by Keen Brave’s negligence in failing to provide safe equipment from 1995 to 2000.

Issues on liability

9. As noted above, the case is brought in the alternative, but the basis of the claim is that the system of work provided by Keen Brave was unsafe, because Ms Ng had to carry too much weight in the course of her work. 

10. The first case is that the weight of the bag of sample cases tired Ms Ng’s hand and made her drop the bag.  This in turn made her lose balance and fall; and the fall caused the disc prolapses.  For this case, Ms Ng must prove on the balance of probabilities that what she had to carry was too heavy and therefore the system of work provided for her was unsafe; and that this, in turn, is what caused the accident and the injuries suffered thereby.

11. The second case is that the unsafe system of having to carry the heavy weight in the course of her work over a period of years caused Ms Ng to suffer the disc prolapses. 

12. The plaintiff’s medical expert is Dr Johnson C.K. Lam and the defendant’s is Dr Lau Hoi Kuen.  In their joint supplementary report dated 24 April 2004 they say that the multiple disc prolapse should be unrelated to the need for continuous carrying of a load from 20 to 40 lbs for the period from July 1997 to February 2000.  The second case, as pleaded, therefore lacks any expert support, but it remains in the pleadings. 

13. As indicated, however, carpal tunnel syndrome seems to have come into the picture, although it is not specifically pleaded.  Ms Ng was found to have carpal tunnel syndrome by the experts when they jointly examined her in December 2002.  At that stage Dr Lam thought that numbness in the three middle fingers of the right hand, which had developed since the accident, was likely related to “double crush syndrome”, i.e. the effect of carpal tunnel syndrome (compression of the median nerve in the wrist) coupled with the effect of the cervical disc protrusion on the median nerve. 

14. The experts gave later individual supplementary reports and a joint report on the cause of the carpal tunnel syndrome.  Dr Lam’s view is that if Ms Ng carried heavy loads of over 20 lbs for over four hours a day in a rather continuous manner this would be a significant causal factor for the carpal tunnel syndrome.  Dr Lau disagreed, on the basis that there had never been any documentation of a relationship between the syndrome and heavy manual activities of the wrist.  Both doctors agreed that if there was a causal relationship between the carpal tunnel syndrome and carrying the load, they would expect good improvement in the syndrome since she stopped working in February 2000.  As to the double crush syndrome, Dr Lam thought the cervical radiculopathy would make the distal nerve trunk more vulnerable to compression but Dr Lau thought that Dr Lam had overstressed the importance of it.

15. The second case is, therefore, not entirely dead.  It has not been properly formulated in the pleadings, but as I understand it, it is that carrying too much weight — the unsafe system of work — caused the carpal tunnel syndrome.  This, when combined with the effects of the accident on the cervical spine, has produced the continuing disability.  That would, presumably, be so even if the accident happened by coincidence.

16. The first issue is, was the weight of the samples which Ms Ng had to carry so great as to make the system of work unsafe?  If they were so heavy as to necessitate the provision of a rucksack or wheeled bag, and none was provided, then obviously the system of work would be unsafe.  The weight is relevant both to the causation of the accident, if there was one, and to causation of carpal tunnel syndrome.

17. The next issue is whether Ms Ng fell at all.  As will be seen, there is evidence from the defence witness that Ms Ng did not report any accident to him until early April.

18. If Ms Ng fell, it is then necessary to decide what caused the fall.  Did the weight of the bag directly cause Ms Ng to drop it; or was her arm so weakened by repeated carrying of the weight that she could not hold it; and if she did drop it, did this cause her to lose her balance and fall?

19. Finally it will be necessary to go back to the medical evidence to consider the causation of the injuries and in particular the carpal tunnel syndrome.

Undisputed facts

20. The following facts are not in dispute.  Ms Ng started working for Keen Brave in 1995 as an outdoor salesperson, from its offices in Mong Kok.  She received a basic salary and commission.  Her job was to go to opticians’ shops on her employer’s customer list and sell spectacle frames to them; she would show them the frames and take orders.  She had to carry sample boxes of spectacle frames; each box was about 18 by 13 by 2 inches, and had 16 compartments; it would hold 32 frames in all.  She would normally carry three or four such boxes.  Three such boxes would be carried in a paper or plastic bag with a string handle, provided by the employer.  The bag and one of the boxes she was using on 28 February 2000 have been produced.  She was not provided with any other means to carry the sample boxes, such as a rucksack or a wheeled sample case. 

21. In late 1998 Keen Brave moved its offices to North Point, and after that Ms Ng worked mostly from her home in Ma On Shan.  She would go to the office from time to time, and sometimes sample frames would be delivered to her at Ma On Shan.  She was supposed to work from 10 a.m. to 6 p.m. but in fact she was pretty much her own mistress, and did not usually arrive at her first customer till about noon.  On any particular day she could choose which shops to visit and in what order. 

Evidence

22. Ms Ng says that on 28 February 2002 she was carrying three sample boxes in the bag, Exhibit P2.  She has produced one of the boxes as Exhibit P1.  The boxes each contained 32 sample frames, which had plastic demonstration lenses in them.  The total weight was about 24 or 25 lbs; after the accident, in about April 2000, she had weighed one box and its contents on a bathroom scale and had found that it weighed 8 lbs.  She had always found the bag of samples heavy to carry, and it hurt her hand so that she had bought a plastic cushion to make it easier to hold the handle.  In about 1997 she had asked her employer for a “handcart briefcase” — from a picture in the bundle it appears that she meant a specially made sample case, with a handle and wheels — but her request had been ignored.

23. She left her home in Sunshine City, Ma On Shan at about 12 noon and went to a shop named Bun Fun Optical Shop.  After dealing with that shop she had lunch, and set off to walk to the Kam Yip Optical Shop in the Chung On Estate.  She had to walk down a long staircase from a pedestrian footbridge; there was a photograph of the staircase in the bundle.  She was walking down the right side of the staircase, but not holding the central hand rail.  She felt that the bag, which was in her right hand, was very heavy; her hand felt sore and she was unable to carry it any more.  It slipped out of her grasp.  She lost balance, and fell to her right side down two of the steps.  From cross-examination, it appears that she fell back and landed on her hands and bottom.

24. When she got up and tried to turn her head, Ms Ng heard a cracking sound in her neck.  When she tried to pick up the bag, her neck and right arm were sore.  She could not use any force and she had to carry the bag in her left hand.  But she thought she was not seriously hurt, so she carried on to Kam Yip Optical Shop and then went to four shops in Shatin.  The next day, 29 February, she still felt sore and weak in her right arm, but she went out as usual with her three sample boxes.  She had to use alternate hands to carry them.  She went home at 5 p.m. because she felt very tired. 

25. That night she felt pain and cramp in her neck.  She woke in the night, and her neck, hand, wrist and arm were painful.  She could not raise her arm and her neck was bent to the right.  So her elder sister, with whom she lived, took her to the Accident and Emergency Department at the Prince of Wales Hospital for treatment.  She informed her employer.  She was admitted for observations for about eight days.  She continued under treatment and on sick leave for about 21 months.

26. Ms Ng is the only witness to the accident.  Mr Tam Wing Kay, who is a director of Keen Brave, was the only witness called for the defence.  According to him, Ms Ng had been telling him, since the middle of 1999, that she had neck pain.  Swimming helped, as did a consultation with a famous bonesetter, but sometimes her neck pain was such that she could not move, and could not go out to work. 

27. He said that in early March 2000, Ms Ng called him from the hospital and told him that she had been admitted with neck pain because she could not sleep well.  She did not mention any accident.  She came to the office in early April to bring in her sick leave certificates.  She said that the doctor had told her she had displacement of the cervical vertebrae and asked why she did not apply for employee’s compensation.  She asked if her employer had employee’s compensation insurance and Mr Tam confirmed that it had.  She then told him that she had fallen down the stairs whilst at work on 28 February.  When she went to the hospital, she was afraid that she would not be admitted, so she had told the doctor that she was injured because of the fall. 

28. When Ms Ng told him about the accident, Mr Tam submitted a Form 2, dated 10 April 2000, to the Labour Department, but because he suspected that she had not been injured at work he added a covering letter to this effect.  In it he said that when admitted to and discharged from hospital, Ms Ng had told the company that her neck injury had been caused by incorrect sleeping posture.  However a month later, she said it was due to a fall.  The alleged fall had happened near her home, and at the time she said it happened, she must have been on the way to the office, and not in the course of work.  She had also told him and other staff that the doctor had refused her admission at first and then she had made falsely represented that she was injured in a fall.  

29. Mr Tam also said that he had weighed a single sample box, with 32 sample frames in it, in a plastic bag, and had found it to weigh 4 lbs.  He had taken photographs of the weighing which was done on a hanging scale such as might be used in a grocery shop.  He brought a sample box to court. 

30. The court was shown some surveillance videotapes of Ms Ng in more recent times.  She is seen driving a taxi, and walking and exercising in a park.  There appears little wrong with her, and there is opinion evidence from Dr Lau that she shows no sign of shoulder pain.  These tapes really go to the question of continuing disability and quantum, if liability is proved.

Medical evidence

31. Ms Ng was admitted to hospital on 1 March 2002 for neck sprain.  She had neck pain with right shoulder numbness.  The admitting doctor said that this was clinically cervical radiculopathy.  At this stage she was complaining of neck and right arm pain.  Clinically there was tenderness at the back of the neck and the right shoulder.  There was also weakness in the upper right arm.  But it appears that there was no complaint of pain, numbness or weakness in the right hand at that stage. 

32. She was admitted until 8 March and thereafter received physiotherapy.  The disc prolapses were found on MRI scan on 24 March 2002.  She was offered but refused surgery. 

33. Ms Ng saw Dr Lau Hoi Kuen, the defendant’s expert, on 6 December 2001.  At that stage she was complaining of neck pain, disturbing her sleep and persistent at all times; persistent right shoulder pain radiating to the elbow and occasionally even down to the fingers, mainly the middle three fingers; and weakness of the right arm.  She saw her own expert, Dr Johnson C.K. Lam, on 8 April 2002.  Her complaints were similar but without the mention of pain radiating down to the fingers. 

34. The two experts performed a joint examination in December 2002 and produced a joint report dated 22 January 2003.  By the time of examination Ms Ng was complaining that the numbness over the middle three fingers of the right hand had become more prominent, and the numbness and pain in the right arm and forearm remained fluctuating in intensity.  The shoulder was a little improved.  There was some new numbness of the left little finger.  Testing suggested that the numbness of the three middle fingers was compatible with carpal tunnel syndrome or double crush syndrome.  

35. Both experts agreed that Ms Ng suffered from severe cervical radiculopathy as a result of the sprain injury to the neck.  Dr Lau thought it impossible for a single accident to have produced the prolapses at so many levels of the cervical spine.  The disc pathology should have been related to existing degeneration, but the accident could have acted as an aggravating factor for the radiculopathy.  Dr Lam agreed that it was unlikely that a single accident would have caused so many prolapses but he thought that the C4/5 disc prolapse was causally related to the accident. 

36. Both agreed that there was probably no direct sprain injury to the right shoulder; the later pain suggested that.  Dr Lam thought that the shoulder pain was related to the progression of the disc prolapse.  Dr Lau thought that while there had been radiculopathy, this should have improved and the right shoulder pain was now caused by supraspinatus tendonitis unrelated to the accident.   

37. Dr Lam considered that the neck pain, right shoulder pain, numbness in the right arm and forearm and weakness of the right arm all came from the cervical disc protrusion and radiculopathy, and that they all had a likely positive causal relationship with the accident.  The numbness of the three middle fingers was probably related to “double crush syndrome”, i.e. compression of the nerves in the carpal tunnel at the wrist plus contribution from existing cervical spondylosis and the cervical disc protrusion, and the accident had a likely contributory role. 

38. Dr Lam wrote a supplementary report dated 8 March 2003 in which he said came from the cervical disc protrusion, and this had a likely positive causal

The weight of the samples

39. As indicated above, Ms Ng says that the bag and its contents weighed about 25 lbs; each box of samples weighed 8 lbs.  She says she weighed them on her bathroom scale.  But Mr Tam puts the weight at half of that, also from a test weighing, using a hanging scale.  He said that the salesperson would require to carry, at most, four such boxes, but if he were carrying four boxes he would use two bags.  The company supplied the bags, but the employee could buy a similar bag in a stationery shop, if need be.  He also said that the employee would not need to carry the boxes continuously, but intermittently, between shop and shop, and off and on public transport. 

40. In court Mr Tam produced a pair of sample spectacle frames, one by Christian Dior and one by Gucci, which he said were “dead stock”, i.e. dating from about the period of the alleged accident.  He also produced a sample box.  These had not been shown to Ms Ng in cross-examination, but counsel had a weighing scale in court and I allowed the frames and boxes to be weighed.  Mr Tam’s box weighed 2 lb 2 oz.  Ms Ng’s box, Exhibit P1, weighed 2 lb 6.5 oz.  I weighed the two pairs of frames myself.  The Christian Dior pair with wide frames, which Mr Tam said were made to take heavy lenses, weighed 1.25 oz.  The Gucci pair weighed 1 oz.  I calculated that the average weight of the 2 boxes, if each was filled with 16 of the one and 16 of the other samples produced, would be 4.5 lbs. 

41. There was also some evidence from Mr Tam that lighter frames would commonly be sold in places like Ma On Shan, because those are what the local people want; the heavier frames tend to be sold to foreigners in Tsim Sha Tsui and other tourist areas.  Ms Ng agreed to that, at least in part; she said that local people follow trends, and it also depends on what the company wants to sell.

42. There is not much difference in the weight of the boxes.  The Christian Dior frames produced are, or at any rate look pretty heavy; but I doubt that there will ever be much difference in weight in spectacle frames.  The Dior frames are only ¼ oz.  heavier than the others.  Even if one took a box weighing 2 lb 6.5 oz and filled it with frames each weighing 1.25 ozs, the total weight would still be just under 5 lbs; so the bag with the three boxes would weigh about 15 lbs. 

43. There is a further question mark over Ms Ng’s evidence of the weight of the bag.  In the employee’s compensation case on 3 July 2001, the employer’s solicitors asked for further and better particulars of the size and weight of the three large bags of sample spectacles, which, in those proceedings, Ms Ng said she was carrying.  Particulars were given on 3 July 2001.  The dimensions were given, but it was said that the exact weight was unknown.  Ms Ng was cross-examined about this.  She said that she had told her solicitors the weight.  However, this seems unlikely.  If she had really known by April 2000 that the weight was 25 lbs.  and had told her solicitors this, it would surely have appeared in the document. 

44. In the light of this and Mr Tam’s evidence, and what we have seen in court when the box and frames were weighed, I doubt that the bag which Ms Ng was carrying on 28 February 2000, or indeed the bags which she carried daily in her work, ever weighed as much as 24 or 25 lbs.  The figure given by Mr Tam seems much more likely to be correct. 

45. It must also be right that a salesperson does not carry samples continuously for the whole working day.  She would naturally put the samples down in the shops, and on public transport.  Indeed that is what happened before the accident; Ms Ng went to one shop and found the person in charge absent, then she went to lunch, and after lunch she returned to the first shop.  She was on her way to a second shop when, according to her, she fell. 

46. Although Ms Ng says that she only used her right hand to carry the bag, any normal person will change hands if the carrying hand becomes tired.  

47. It is difficult, therefore, to see that Ms Ng had to use an unsafe system of work, either on the day on which she says she had the accident, or in the period she worked for Keen Brave, whether operating out of its Mong Kok office prior to late 1997 ,or from her own home later, or on the day in question. 

Did Ms Ng fall?

48. There is only Ms Ng’s evidence that she did.  But she presented at the hospital on the morning of 1 March 2000, and told the admitting doctor that she had had a fall three days before the consultation.

49. Mr Tam says that she never mentioned any fall until later, when the question of compensation had come into her mind.  Ms Ng, of course, when cross-examined on this point insisted that she did tell him that she had fallen, at the first available opportunity, on the telephone from the hospital.  She further insisted that she had never told him that she had had any trouble with her neck, before that time.

50. Mr Tam obviously took his job as an employer quite seriously.  Keen Brave had employee’s compensation insurance, and he says that he knew that he had to submit the Form 2 to the Labour Department as soon as possible.  He says that he was very familiar with Ms Ng, and she told him everything; that may or may not be right, but obviously she was a trusted employee, who was pretty much left to her own devices so long as she brought the orders in.  It is difficult to see why, if Mr Tam knew of the accident at the beginning of March, he would not have sent in the Form 2 then. 

51. As to whether Ms Ng had some previous problems with her neck, and told her employer of them before the accident, it may be that she did; the doctors agree that there were degenerative changes. 

52. The employer’s letter seems genuine enough.  At the same time, given that Ms Ng was working from home it is difficult to see why Mr Tam should have written that she should have been on the way to the office, and therefore not in the course of her work.

53. Overall, given that something set off Ms Ng’s neck trouble, and given the opinion of Dr Lau in his first report that the injury was compatible with a fall, assuming existing disc pathology, I think it is more probable than not that she did fall. 

What caused the fall?

54. Ms Ng says in-chief that she felt in her right arm and wrist that the frames were very heavy.  She felt a sense of pressure, so that her hand felt sore and she was unable to carry them any more.  They slipped out of her hand, and she lost balance; and then her balance fell to her right side and she slipped two steps of the stair.  

55. When she went for treatment, Ms Ng did not report that she had fallen because she was carrying a heavy weight.  Under cross-examination she said that she had not told the doctor this at the A&E Department, because she was not asked; but she had told the doctor on the ward later on.  She had also told the physiotherapist. 

56. There is no record of any such report.  There is a note by the physiotherapist on 2 March 2000 which says :

“Developed severe neck pain and R upper arm numbness ‘overload’ of the day of the accident”

57. I have put the word ‘overload’ in parentheses because it is not properly legible.  Counsel for Ms Ng says that it says ‘overload’.  I am not sure.  It could mean ‘overload’ but, given the context it does not appear to be a report of having to carry too heavy a load.

58. Elsewhere in cross-examination Ms Ng referred to the fact that her right arm or hand generally felt weak and painful, before the accident, because of carrying heavy loads. 

59. She said that all along when she carried a heavy bag, she felt pain and weakness in arm.  When she fell, she felt soreness and weakness.  She could not hold the bag so it slipped from her hand.  She thought that the heavy weight of the goods had caused weakness in her arm, so she dropped the goods and fell.

60. Again, there is no reference in the medical notes to any complaint of arm numbness or weakness before the accident.  Apparently these came on later.  Ms Ng could not explain this. 

61. If Ms Ng was carrying a bag weighing 12 or 15 lbs, as she probably was, and had only been carrying it for a relatively short time since leaving the first shop, it is difficult to see that the weight would have caused tiredness or weakness in the arm unless the arm was already made tired and weak through repeated carrying of the load.  But if the latter were the case, one would have expected a complaint to the doctor on presentation of suffering from weakness in the arm before the accident.  Yet there is none. 

62. It also seems improbable that if a person was carrying a bag and dropped it, that would cause loss of balance and a fall, particularly as Ms Ng describes.  She says that her balance shifted to right when she dropped the bag but this does not appear to make sense, because if one drops a weight on the right the balance will naturally shift to the left.  There was some cross-examination on this point but Ms Ng could not really give any satisfactory explanation.  Of course it might be difficult, after the event, to reconstruct exactly what happened; but I am left with a considerable doubt as to the accuracy of the evidence

63. I am not, therefore, satisfied that it was the weight of the bag which directly caused Ms Ng to drop it; nor am I satisfied that the weight of the bag, carried over time had caused weakness in the arm and hand, which in turn caused her to drop it; nor can I be satisfied that dropping the bag caused her to lose balance and fall. 

Carpal tunnel syndrome

64. Dr Lam says that carrying heavy loads would increase pressure in the carpal tunnel.  He believes that if Ms Ng carried and gripped heavy loads, of over 20 lbs for over four hours per day in a rather continuous manner, it is likely that this would be a significant causal factor of the syndrome.  He cites some medical literature in support.  Dr Lau says that the relationship between carpal tunnel syndrome and heavy manual exertion has not been documented, and that in many cases the cause is unknown. 

65. There is, however, no evidence from the experts as to the effect of carrying a lighter load of 12 or 15 lb.  Given my finding that this is probably what Ms Ng had to carry,  I do not see that I could find that carrying the load caused the carpal tunnel syndrome, because there is no evidence that that kind of weight would cause it.

66. The doctors agree that a more proximal lesion of the median nerve (cervical radiculopathy with nerve root compression) could make the distal nerve trunk more vulnerable to compression.  To me, this suggests that the carpal tunnel syndrome could be expected to develop after the cervical radiculopathy rather than before.  The joint medical report in January 2003 shows that the complaints of numbness to the three fingers, suggestive of carpal tunnel syndrome, had surfaced since the experts made their earlier individual reports.  This, coupled with the lack of any medical complaints of arm weakness before the accident suggests that it was probably not caused by carrying the weight, but rather by something else acting later on the vulnerable distal nerve trunk. 

67. Overall, therefore I am not satisfied that the system of work caused the carpal tunnel syndrome. 

Conclusion

68. I am not satisfied either that the system of work provided to Ms Ng was unsafe.  I am satisfied that Ms Ng fell and that the fall caused her to suffer the cervical radiculopathy, but I am not satisfied that carrying the samples for her employer caused her to fall.  Nor am I satisfied that carrying the samples caused carpal tunnel syndrome.  It follows that Keen Brave cannot be found liable.  That being so it is unnecessary to go on to consider the quantum of the claim. 

69. The plaintiff’s claim is dismissed with costs to the defendant to be taxed if not agreed.  The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.