TSANG CHI KEUNG v. WONG PAK CHOW AND ANOTHER

HCPI 748/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.748 OF 2001

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J U D G M E N T

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1. The plaintiff brings this action against the defendants for damages arising from personal injuries sustained by him as a result of an accident which occurred at Construction Site H9704, Lot 126, Fanling in the New Territories on 14 September 1998. At that time a residential development was being constructed at the site by the name of Belair Monte ("the Site").

2. At the time the plaintiff was employed as a site agent by Hop Fat Yuk Ying Engineering trading as Hop Fat Ironware Works. The plaintiff's employer was a sub-contractor of the 2nd defendant who was the principal contractor of the Site.

3. The 1st defendant was an employee of the 2nd defendant at the Site.

4. It is the plaintiff's case that on the evening of 14 September 1998, he was in the course of his employment at the Site and was using a forklift truck in the process of lifting a wooden box of glass panels which weighed over one tonne. After he had slightly lifted the wooden box of glass panels, he found that the wooden box had tilted slightly and was leaning against another similar box of glass panels next to it. He then alighted from the forklift truck and together with a colleague while they were working out how to properly straighten the box of glass panels that he was attempting to lift, another forklift truck driven by the 1st defendant attempted to pass by the narrow passageway behind the plaintiff's forklift truck. In so doing, the forklift truck driven by the 1st defendant collided with the plaintiff's forklift truck, jolted it, and caused the box of glass panels being lifted to topple over trapping and crushing the left leg of the plaintiff. As a result the plaintiff suffered a segmented and comminuted fracture of his left tibia and fibula.

5. The plaintiff alleges negligence on the part of the 1st defendant in causing his forklift truck to collide with the plaintiff's forklift truck which in turn caused the wooden box of glass panels to topple over and that the 2nd defendant, being the employer of the 1st defendant, to be vicariously liable for the negligence of the 1st defendant.

6. On the other hand the defence of the 1st and 2nd defendants to the plaintiff's claim is quite simply that although the 1st defendant was driving a forklift truck in the vicinity where the box of glass panels toppled over crushing the plaintiff's left leg, there was never any collision between the two respective forklift trucks driven by the plaintiff and the 1st defendant and that such accident was not caused in any way by the 1st defendant.

7. From the above, it can be seen at once that effectively there is only one issue of disputed facts between the parties in this case, namely whether there was any collision between the two forklift trucks respectively driven by the plaintiff and the 1st defendant.

8. In this trial, I am only concerned with the question of liability due to an order having been made for split trial.

Plaintiff's evidence

9. The evidence adduced by the plaintiff comes from the plaintiff himself and from his colleague, Cheung Man Biu, who was assisting him at the time of the accident.

10. The plaintiff gave evidence that on 14 September 1998, it had been arranged with Choi Kee Glass and Mirror, the supplier of the glass panels, that a total of 10 boxes of glass panels would be delivered by Choi Kee to the Site. Delivery of these glass panels had been taken by the plaintiff at the Site. Between 4 p.m. and 6 p.m. that same day, the plaintiff had used a forklift truck to transport eight of the boxes which were smaller in size to the spot in the Site where the glass panels were to be installed. There were only two bigger boxes of glass panels left to be transported to the installation points. However, because the passage for transporting the remaining two bigger boxes of glass panels by forklift truck to their installation points had been obstructed by a waste disposal truck, he had to wait until 7 p.m. before he could continue with that transportation work.

11. The remaining two bigger boxes of glass panels measured 1.1 metre tall, 3 metres in length and was 300 mm thick. Each box with the glass panels inside weighed about 1.5 metric tonnes. These two boxes were standing on their own about one metre in front of a column on the ground floor car park of the Site which at the time was under construction. That particular column is shown in photograph 2 at page 68 of the trial bundle. However that photograph was taken some three years after the accident, by which time the construction work had been long completed. There is also a sketch of the scene of the accident at page 70 of the trial bundle on which the plaintiff had drawn on an architectural plan of the ground floor car park the respective positions of the plaintiff, Cheung Man Biu, the two boxes of glass panels and where the two forklift trucks were at the time of the collision alleged by the plaintiff.

12. Coming back to the evidence of the plaintiff, he says that at about 7 p.m. he drove his forklift truck to where the two bigger boxes of glass panels stood. Cheung Man Biu was with him. At the time there was a gap of about one inch in between the two boxes of glass panels as they stood there on their own. The plaintiff then inserted the two forks of his forklift truck into the slit at the bottom of the outer box which is the box further away from the column. He intended to slightly lift that outer box and then to draw it away by reversing his forklift truck. However after he had lifted the outer box for about one or two inches and as he tried to back up his forklift truck, he found that the outer box slightly tilted towards the inner box and leaned against it. He then stopped his forklift truck and alighted to see how best to straighten the outer box which had titled and was leaning against the inner box.

13. Together with Cheung Man Biu they decided to first shore up the box on the inside so as to prevent it from falling backwards since the outer box was leaning against it. They did so by nailing pieces of boards in a vertical and also in a slanting position behind the inner box in the one metre gap between it and the column and using the column as a prop for the shoring. They then tried to find a way to straighten up the outer box which was resting on the two forks of his forklift truck but at the same time still tilting slightly and leaning against the inner box. It had taken them some half an hour to make the shoring to prop up the inner box against the column behind it. By that time it was about 7.30 p.m.

14. During that time, according to the plaintiff, the 1st defendant had driven out from inside the car park (which the plaintiff refers to as the first trip of the 1st defendant). When the 1st defendant found that the plaintiff's forklift truck was blocking his passage, the 1st defendant complained to the plaintiff about it. In reply, the plaintiff told the 1st defendant that he could not do anything about it because he could not move his forklift truck without risking the box of glass panels resting on the two forks toppling over.

15. As a result, the 1st defendant then moved away some of the obstructing material behind the plaintiff's forklift truck with his hands having alighted from his own forklift truck and thereafter, using his forklift truck, the 1st defendant also moved away other obstructing material stacked there. Having done so, the 1st defendant managed to create a narrow passageway, just good enough to allow the 1st defendant's forklift truck to pass by behind the plaintiff's forklift truck. The 1st defendant then drove his forklift truck to pass behind the plaintiff's forklift truck towards the direction of the main gate. On that occasion nothing untoward happened when the 1st defendant passed behind the plaintiff's forklift truck going in the direction of the main gate.

16. Some time later the 1st defendant came back in his forklift truck from the direction of the main gate. At that time the plaintiff and Cheung was still standing each on one side of the two boxes of glass panels still trying to work out a way by which the outer box of glass panels could be straightened onto the forks of the plaintiff's forklift truck. As the 1st defendant's forklift truck passed by behind the plaintiff's forklift truck on this second trip, the plaintiff saw his (the plaintiff's) forklift truck, which was stationery, jolt. At once, the outer box of glass panel slid down trapping and crushing the plaintiff's left leg below the knee. Cheung came round to the side where the plaintiff was and tried to free the plaintiff by attempting to lift the box trapping the plaintiff's leg but was not able to due to the weight of the box with its contents. The plaintiff then used his mobile phone to call for assistance from other workers who were still at the Site. As a result some ten odd workers came along to where the plaintiff was pinned by the box and together they were able to lift the box trapping the plaintiff's left leg. An ambulance was summoned and the plaintiff taken to hospital.

17. In cross-examination, the plaintiff initially maintained that he was able to see that it was the nearside rear wheel of the 1st defendant's forklift truck which had swung outwards as the 1st defendant's forklift truck was passing behind the plaintiff's forklift truck on the second occasion, and it was that rear wheel of the 1st defendant's forklift truck which collided against the plaintiff's forklift truck. The plaintiff also explained that with forklift trucks, when the steering wheel is turned, it is the rear wheels which move and not the front wheels as is normally the case with cars.

18. It was only after a great deal of effort by Mr Lim in cross-examination pointing out to the plaintiff the respective positions of the plaintiff and the two forklift trucks as depicted by the plaintiff on the sketch at page 70 of the trial bundle as well as the relative positions of the rear wheels to the body of a forklift truck as shown in the photographs, that the plaintiff finally conceded that he may not have been able to actually see the rear wheels of the 1st defendant's forklift truck colliding with his forklift truck at the time the accident happened but, instead, he may have assumed that to be the case from all the circumstances including his seeing the jolting of his own forklift truck just as the 1st defendant's truck was passing behind it.

19. Cheung Man Biu also gave evidence for the plaintiff. His evidence differed from the plaintiff's evidence in a number of ways.

20. Cheung was a sub-sub-contractor of Choi Kee Glass and Mirror. On the day of the accident, he was at the Site to install the glass panels. Choi Kee had delivered 10 boxes of glass panels to the Site that same afternoon and had left those 10 boxes at the main gate of the Site. He and the plaintiff had to transport those 10 boxes away from the main gate because they were not permitted to leave material at the main gate. They therefore took these 10 boxes into the car park and placed them against the column (next to carpark C4) which is the same column referred to by the plaintiff. At that same time they had constructed wooden shorings to prop up these boxes against that column. The boxes not only leaned against the column, but were stacked in such a way that the boxes leaned against each other as well, thus slightly slanting. He explained that that had to be done because the boxes were not only heavy but that they contained glass panels and these steps were taken to ensure that the boxes would not fall down and break its contents.

21. By about 6 p.m. that same day, he and the plaintiff had already successfully transported the eight smaller boxes of glass panels to Level 2 of the Site where the glass panels were to be installed. A forklift truck operated by the plaintiff was used for the transportation of the eight smaller boxes to Level 2. They could not transport the two remaining larger boxes until 7 p.m. because the passageway to Level 2 had been blocked between 6 and 7 p.m.

22. At 7 p.m., he and the plaintiff started to transport the remaining two larger boxes. The inner of the two larger boxes was leaning against the column and also propped up behind by wooden shorings. The outer of the two boxes was slightly leaning against the inner box. The measurements given by Cheung of these two larger boxes were similar to those given by the plaintiff.

23. When the plaintiff inserted the two forks of his forklift truck under the outer box of glass panels and tried to draw it out slightly, that box of glass panel tilted even more towards the inner box leaning against it. Thus the plaintiff stopped his forklift truck and alighted from it. Cheung and the plaintiff then each went to one side of the outer box attempting to push that outer box onto the forks so as to prevent that box from further sliding down or toppling over.

24. Just at that time, the 1st defendant drove by in his forklift truck coming from the direction of the main gate. As his forklift truck passed by behind the plaintiff's forklift truck, Cheung heard a sound. At the same time he heard the plaintiff yelling. He went over to the side where the plaintiff was and saw that the outer box had slid down trapping the plaintiff's left leg between the outer box and the inner box of glass panels.

Cheung also said in evidence that although he did not see any collision between the two forklift trucks, the outer box would not have slid down on its own without any external factor causing it to do so.

25. It was also Cheung's evidence that after the accident, he had tried to free the plaintiff from the box trapping the plaintiff's left leg but could not do so on his own. Thereafter other workers were summoned by mobile phone and some 10 odd workers came to help free the plaintiff by lifting up the box trapping the plaintiff. Thereafter he accompanied the plaintiff on the ambulance to the hospital.

26. In cross-examination, Cheung said that after the plaintiff had alighted from his forklift truck, he and the plaintiff had tried to push the outer box into an upright position for some 4 to 5 seconds when the accident happened. He also said that it was no more than 30 seconds from the time the plaintiff alighted from the plaintiff's forklift truck to when the accident happened.

Defence Evidence

27. In so far as the occurrence of the accident is concerned, the only evidence from the defence came from the 1st defendant.

28. His evidence was that at the time the accident to the plaintiff occurred, he was driving a forklift truck following that being driven by the plaintiff. The plaintiff's forklift truck was in motion and slightly ahead of his by about the lengths of three similar forklift trucks. At that time, a wooden box of glass panels was standing on the forks of the plaintiff's forklift truck. As it was travelling, due to the rough surface of the ground, the plaintiff's forklift truck jolted. As it jolted, the box of glass panel standing on the forks began to tilt forward. The plaintiff then stopped his forklift truck, climbed down, went to the front of the forks and the tilting box intending to stop the box from falling and move the box back into place by pushing the box with his hands. The plaintiff was not strong enough to do so and as a result the box toppled over pinning the plaintiff's left leg to the ground.

29. On seeing this the 1st defendant stopped his forklift truck, got down, went over to the plaintiff's forklift truck, operated the forklift of the plaintiff's forklift truck by lifting it together with the box about four inches higher thereby freeing the plaintiff's left leg from being pinned by the box on the ground. According to the 1st defendant, another worker, by the name of Yip Yat Kwong from Kam Tai Co., another sub-contractor, was also in the vicinity of the accident when it happened but that Cheung Man Biu, was not there.

30. After rescuing the plaintiff, the 1st defendant then went to park his forklift truck and did not return to the scene. He left when an ambulance came to attend to the plaintiff.

Other evidence

31. The defendants sought also to rely on what was stated in a "Workers Injuries Report" annexed to the witness statement of Yeung Yee Kwong. In the Workers Injuries Report under Section II, it was stated as follows :

"At the time of transporting glass panes at the entrance of L1 carpark, (I) was crushed by one box of glass panel and sustained injuries (because that box of glass panel had been moved in the course of transportation)."

32. Underneath that statement it was also stated in that report that the accident was not caused by mechanical failure or damage.

33. Yeung Yee Kwong was called to give evidence as to how that statement in the report came about.

34. Yeung Yee Kwong was a foreman employed by the 2nd defendant at the time this accident happened. Apart from being a foreman, he holds qualification as a first aider. Therefore he was also given the task by the 2nd defendant to assist the safety supervisors although he was not a safety supervisor himself. Part of that duty requires him to fill out accident reports.

35. Yeung's evidence was that while the plaintiff was in hospital after the accident, he had chased after the plaintiff to come to the Site office to fill out an accident report. Some time after the accident, the exact date of which he cannot remember, the plaintiff came back to the Site office to collect his sick leave wages. Since Yeung had been urging the plaintiff to come along to fill in and sign the accident report, he took that opportunity to interview the plaintiff and to fill out the report for the plaintiff to sign.

36. His evidence was that those words detailing how the accident happened came from the plaintiff and he simply wrote down what the plaintiff had told him as to how that accident happened. Then it was shown to the plaintiff to read for himself and the plaintiff made no comments about what was written. He then asked the plaintiff to sign in Section I.

37. The plaintiff on the other hand also gave evidence as to how these words came about. It was the plaintiff's evidence that on 29 September 1998, two days after he was discharged from hospital, he went back to the Site office to collect his sick leave pay. There he met Yeung Yee Kwong who asked him to fill out and sign this report. It was a printed form. The plaintiff filled out many of the personal particulars pertaining to himself in his own hand under Section I and signed his signature in Section I. Section II which contained the words sought to be relied on by the defendants were written out by Yeung. When he was asked how the accident happened by Yeung, the plaintiff told him how it happened in the way that he had told the court, namely that the 1st defendant's forklift truck had collided with his forklift truck causing the box of panel glass to fall onto his left leg.

38. Having told Yeung what had happened, Yeung then said to him that for the purpose of the report, he was only required to provide information about the location and what he was doing at the time of the accident. Yeung then wrote down in the report the location and what the plaintiff was doing when the accident happened.

39. Because of that, the plaintiff admitted that he took no steps to ensure that Yeung had recorded down the plaintiff's complaint as to the driving of the 1st defendant.

40. The plaintiff also agreed that what was recorded in the report by Yeung was not in accordance with what he had said to Yeung as to how the accident occurred.

41. When Yeung was cross-examined, he conceded that his task was simply to take a statement from the plaintiff as to how the accident happened, and that it was not any part of his duty to investigate into the accident or how it happened. Any such investigation was to be dealt with by the Safety Officer after he had sight of this report prepared by Yeung. For that reason, Yeung had not taken any statement from any other person who might have witnessed the accident, nor had he made any enquiries as to who may be a witness to that accident.

42. Yeung further agreed that he did tell the plaintiff during the interview that the plaintiff was only required to provide information as to the location and what the plaintiff was doing at the time of the accident.

43. However, Yeung maintained that what had been written down by him in those two lines in the report as to how the accident occurred was all that the plaintiff said to him as to how the accident happened.

Assessment of the evidence

44. Having heard and seen the plaintiff give evidence from the witness box, and accepting the fact that he had only primary education, I have come to the conclusion that he is a person of low intelligence. Moreover, he is inarticulate and at times his memory is not very reliable. However, given all these limitations, I found him to be doing his best to tell the truth.

45. As for Cheung Man Biu, I found him to be truthful and by far the most reliable witness in this case. He is intelligent, logical and a sensible person. Moreover he is extremely careful. This is clearly illustrated in his evidence when he was reluctant to say that he saw a collision between the 1st defendant's forklift truck and that of the plaintiff despite attempts by the plaintiff's counsel in trying to obtain that evidence from him. He told the court that he heard a sound but was extremely careful not to commit himself to saying what caused the sound. This almost led him to being turned hostile by counsel for the plaintiff.

46. Turning now to the defendant, I found him to be a wholly untruthful witness. The account he gave of how the accident happened was manifestly and inherently improbable. According to him the dimensions of the box standing vertically on the plaintiff's forklift just before the accident was 1 metre tall, about 6 inches thick and with a length of about twice the length of the witness table in court (which would be about 6 feet). Given those dimensions of the box, when, according to him the plaintiff's forklift truck jolted due to the rough surface of the ground it was travelling on that caused the box to tilt forward. The improbability in his story comes from saying that when the plaintiff saw the box beginning to tilt and to fall forward slowly at first then quicker, the plaintiff was able to stop his forklift truck, alight from it, go round to the front in an attempt to push back this box with his two hands.

47. I cannot imagine that in the time taken by the plaintiff to do all that after seeing this very heavy box tilt forward, the box would not already have crashed to the ground long before the plaintiff got to the front of it. Moreover, once the plaintiff stopped the forklift truck, the halting of the truck itself would add further momentum to the already tilting and falling box thus accelerating its fall.

48. I therefore reject the evidence given by the 1st defendant as to how the accident occurred in its entirety. For the reason why I have rejected the evidence of the 1st defendant, I have come to the conclusion that this evidence of his was concocted and fabricated by him. I draw the further conclusion that the only reason why he has concocted that evidence is because he is well aware of the fact that his forklift truck did in fact collide or brush against the forklift truck of the plaintiff and in doing so caused the outer box to fall trapping and crushing the plaintiff's left leg. I find that his evidence was therefore fabricated in an attempt to lie his way out of the responsibility for this accident.

49. I accept the evidence of the plaintiff that when the 1st defendant's forklift truck passed behind his forklift truck, he saw his forklift truck jolt. Although it has now been admitted by the plaintiff that he did not and could not have seen the rear wheel of the 1st defendant's forklift truck colliding with the rear of his forklift truck, I am able to draw the inference, on balance of probabilities, that some part of the 1st defendant's forklift truck did come into contact, probably not much more than a brush, with the plaintiff's forklift truck, but sufficient to cause the box of glass panels, which was already in a precarious position, to topple and fall.

50. Quite independently of the plaintiff's evidence on this aspect of the case, I can and do draw the adverse inference against the 1st defendant, from my finding that he had fabricated the evidence given by him as to how the accident happened, that he knew that his forklift truck had come into contact with the rear of the plaintiff's forklift truck and that was the cause of the box of glass panel falling onto and crushing the plaintiff's left leg.

51. In so far as there are differences between the evidence given by the plaintiff and that given by Cheung Man Biu, I much prefer the evidence of Cheung Man Biu. I find that the reasons and explanations given by Cheung regarding details asked of him in chief and in cross-examination to be both logical and reasonable.

52. Turning now to consider the evidence relating to the "Workers Injuries Report" produced by Yeung Yee Kwong, I do not find Yeung Yee Kwong to be a truthful or reliable witness in so far as he says that the two lines written down by him in Section II of that report was all that the plaintiff told him as to how the accident occurred.

53. I much prefer the evidence of the plaintiff that the account which he gave to Yeung was to the effect that the 1st defendant's forklift truck had collided with his forklift truck thus causing the box to fall down trapping his left leg.

54. I also accept the plaintiff's evidence that Yeung said to him during the interview (which is admitted by Yeung) that he (the plaintiff) only needed to provide information as to the location and what the plaintiff was doing at the time of the accident.

55. From all the evidence in this case, I have grave doubts as to whether this report is in actual fact an accident report in the sense that its purpose was to investigate and to report on the accident and or its cause. Rather it seems to me that all the evidence in this case suggests that this was a report made for the purpose of making an insurance claim by reason of injury having been sustained by a worker, the plaintiff.

56. The reason I say this is because this report was filed away in the insurance department of the 2nd defendant and also because of the heading at the top of this report containing words which suggest that it was a document relating to claims for insurance.

57. Moreover, there is also the evidence of Yeung that although he made this report, he was not given the task of investigating into this accident.

Findings of fact

58. I make the following findings of fact :

(1)	At about 7 p.m. on 14 September 1998, the plaintiff and Cheung Man Biu was at the ground floor car park of the Site together intending to transport the remaining two boxes of panel glass to Level 2 of the Site by use of a forklift truck operated by the plaintiff.
(2)	When the forklift truck was driven by the plaintiff to the position shown in the sketch at page 70 of the trial bundle, after the forks had been inserted underneath the outer box of glass panels (which had initially been slightly leaning against the inner box) and the plaintiff had attempted to slightly lift it and draw out that outer box, the outer box tilted further towards and leaned more onto the inner box.
(3)	The plaintiff then stopped his forklift truck, alighted from it and together with Cheung Man Biu, each took up one side of the outer box and tried to push the outer box so that it could be put properly on the forks of the forklift for it to be transported.
(4)	Just at that time, the 1st defendant came along driving another forklift truck from the direction of the main gate and attempted to pass by behind the forklift truck of the plaintiff. In doing so some part of the forklift truck of the 1st defendant brushed against the back of the plaintiff's forklift truck which was stationery there causing it to jolt which in turn caused the outer box to slide down and fall onto the left leg of the plaintiff trapping it between the two boxes of panel glass.
(5)	As Cheung Man Biu and the plaintiff were not strong enough to free the trapped left leg of the plaintiff from the box of glass panel, they had to summon help from other workers still at the Site by using a mobile phone. This brought along some ten odd workers who together was able to lift the box pinning the plaintiff's left leg thus freeing the plaintiff.

59. I have made no findings on the evidence given by the plaintiff as to what he calls "the first trip" of the 1st defendant. The reason that I have made no findings on that is firstly, I am of the view that such findings is not necessary for my determination of the issue of liability in this matter. Secondly, apart from the plaintiff who gave evidence of it, neither Cheung Man Biu nor the 1st defendant were asked in chief or in cross-examination of those matters. Thirdly, having accepted the evidence of Cheung Man Biu by and large as to the occurrence of the accident, the timing of the events as given by Cheung Man Biu leaves no room for any such finding by me.

60. If it should transpire that the evidence given by the plaintiff of the first trip of the 1st defendant is material to the issue of liability (apart from the question of credibility), I would reject the evidence of the plaintiff on that aspect of the case since it cannot sit together with the evidence given by Cheung Man Biu, in particular the timing of the events as given by Cheung.

Liability of the defendants

61. It may well be that it was due to sheer poor judgment of the 1st defendant because of the limited space that his forklift truck came into contact with the plaintiff's forklift truck. Be that as it may, the 1st defendant knew or must have known that colliding with or even brushing against the plaintiff's forklift truck could result in either the plaintiff or Cheung sustaining injuries since the 1st defendant was able to see that the plaintiff and Cheung were each of them on one side of the outer box of glass panels attempting to properly place it on the forks of the plaintiff's forklift truck.

62. In the circumstances, the 1st defendant owed a duty to the plaintiff (as well as to Cheung Man Biu) not to do anything which could endanger either of them. In allowing his forklift truck to brush or collide with the rear part of the plaintiff's forklift truck which was stationery, the 1st defendant was in breach of that duty and was therefore negligent.

63. As for the 2nd defendant, it is admitted and not in dispute that it is the employer of the 1st defendant. The 2nd defendant is accordingly vicariously liable to the plaintiff as well for the negligence of its servant, the 1st defendant.

Contributory negligence

64. Contributory negligence had been pleaded by both defendants in their defence. However, it was pleaded on the factual basis of the defendant's case (i.e. the 1st defendant's version of how the accident happened). Indeed if the 1st defendant's evidence had been accepted that there was no collision between the respective forklift trucks of the 1st defendant and the plaintiff, there could be no liability on the part of the defendants at all.

65. Counsel for the defendants in his final submission conceded that on the factual basis of the plaintiff's case being accepted by the court, there was no possibility of there being any contributory negligence on the part of the plaintiff and did not wish to proceed with the plea of contributory negligence should that be the finding of the court at the end of the day. In my view that concession was properly made by counsel.

Conclusion

66. For the reasons given above, there will be judgment for the plaintiff against both defendants on liability.

Costs

67. There will be an order nisi that the defendants do pay the plaintiff's the costs of the action on liability, such costs to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.