YEUNG KAM FUK v. LEN SHING CONSTRUCTION CO LTD AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

__________

JUDGMENT

__________

1. On 14th August 1979 the Plaintiff, YEUNG Kam-fuk, was working at the 14th floor level on a building site at 275, Kin Yip Street, Yuen Long. He was working with his mate CHOW Wai-man. They were together engaged in the dismantling of formwork. This entailed removing the formwork which had already been put up in the lift shaft between the 14th and the 15th floor level, and passing the formwork boards up to 15th floor level for future use. In order to get access to the formwork, the person removing the boards had to stand on a working platform which had been constructed at 14th floor level in the shaft. This work had been done apparently some days earlier by some other colleagues of the plaintiff.

2. When they started work that morning, Mr. Chow stood on the platform removing the boards and handing them up; whereas the plaintiff was at the floor above receiving the boards, and stacking then for future use. It was a hot morning. After a while the plaintiff decided that it was his turn to do the harder work. He came down and started working below, and after a cup of tea Chow took over above his head. They had not been working very long in that formation when the platform collapsed, and the plaintiff fell down. He was lucky enough to rave his fall arrested by tae corresponding platform which still existed on the 13th floor level. But he must have fallen some 10 feet or more, the approximate distance between floors. In the course of that fall, not unnaturally, he sustained personal injury. That is the explanation for this action.

3. If he had, at that time, fallen off the edge of the platform, a distance of more than 6 feet, he would have had under the then Construction Safety Regulations a prima facie case against the main contractor on sit for breach of statutory duty. Unfortunately, under the Regulations then in force a bizarre situation arose. If you went off the edge of the platform more than 6 feet you had a case; and if the platform collapsed underneath you, and you fell core than 6 feet you had no case. That I am happy to say, has been corrected by the 1983 regulations. But this omission has really resulted in this action,framed at Common Law, which ultimately raises the question whether the regulations imposed a novel obligation or whether they dial no more than reflect the Common Law position.

4. It started with a claim brought by the plaintiff against the 1st defendant, Len Shing Construction Company Limited, the main constructors on site, alleging that they were his employers and also under a duty to him as occupier. The 1st defendant then asserted by their defence that the person responsible in both capacities, was their sub-cdntractor Mr. TAM Wai-kit trading as Wai Kee Building & Decoration Contractor. When that allegation was made the 2nd defendant,Mr. Tam, was duly joined in that capacity. Not to be out done, he advanced the same defence. He said the man responsible was his sub-subcontractor Mr. LEE Yuk-lun also known as LEE Lun. That is the reason why we have three defendants before the Court; the 1st defendant, the main contractor; the 2nd defendant, the formwork sub-sub-contractor and the 3rd defendant, the formwork sub-sub-contractor. I am concerned to determine the liabilities, if any, of these three defendants, because at the outset of the case, I was asked by a1l parties to treat the trial as one of liability only deferring all questions of quantum. I agreed to take that course.

5. I now return to the history of the site. This started in January 1979 when on 5th January the 1st defendants entered into a main contract for the construction of a new building on the site. Notwithstanding their name the 1st defendant is not a construction company in the normal meaning of that term. Because having secured the main contract in this case it duly sub-contracted virtually the whole construction job retaining for itself only the job of co-ordination and site management. The defendant company appear, certainly in relation to this job, not so much to be builders but site managers. They had on site a foreman, a clerk of works and site office, and a residue of casual workers, cleaning sweeping staff. That was all. As far as I can ascertain the only skilled man on site was the foreman, but precisely what his experience and skills were I do not know, because I heard no evidence either from him or directly about him.

6. Some few days later, on 11th January 1979, the 1st defendant entered into a contract with the 2nd defendant for all the formwork on site. Now the 2nd defendant was a former employee of the 1st defendant. He was employed by them, not very long, as a casual worker. Then apparently he left them to set himself up in business on his own account. He again was really a one-man band, helped occasionally by his son, who employed no permanent staff at all. This was a job of which there is no possibility of his being able to handle on his own, and nor, indeed, was that ever his intention. He had to sub-contrast the bulls of the job to people who were in a much more substantial way of business than he was. It seems to me that the 1st defendants must lave known that this was the way in which the 2nd defendant carried on his business. The first thing the 2nd defendant did, having done a modicum of work himself on site, was to sub-contract the formwork for tile first ten floors of the building to another Mr Tam, Tam Shun. He seems to have given up for undisclosed reasons when he reached the 10th floor. It is at that stage that the 3rd defendant came on the scene as the sub-sub- contractor for the remaining floors.

7. For what I have heard about the 3rd defendant (as I have not heard in fact directly from him) he seems to have been a co-ordinator for a group of men who, I think can properly be described as labour only sub-contractors. One of the things which came clearly out of the evidence in this case wan the affection construction workers in Hong Kong have for the risks, the notional independence, or the gamble of contracting, as opposed to the tedium slid the security of employment. No one wishes to be employed; everyone wants to act on their own account as contractor. The 3rd defendant appears to have been the co-ordinator of a team of contractors, who acted as the link man between the team and Mr. Tam, the grid defendant. From what I have heard, Mr. Tam would quote a price for a particular job. The team would then discuss it and decide whether or not they were going to do it. If they did, they went on and started. They arranged to have daily sums paid to them by the 3rd defendant; which were called wages, but were really payments on account. They were emphatic that no one was there to give them any instructions at all. In those circumstances, it seems to me that both the plaintiff and his colleagues were Self-employed sub-contractors by choice, and very much by assertion. The claims that appear on the pleadings against the various parties as employers, must all fail.

8. Reverting to the work, there were several places on the site, and the lift shaft was one, where the construction and dismantling of formwrok could only be done from a temporary working place erected for that purpose. No fixed arrangement for this was made between the 1st and 2nd defendants. In some cases e.g. the outside scaffolding, the 1st defendant assumed responsibility by getting a specialist scaffolding sub-contractor to put up the necessary bamboo scaffolding outside the building, which seems to have been open for use by anybody else on site. In other cases nothing was agreed in advance. It was a question of working things out as the job progressed. The theme of the evidence there again, as far as money and safety was concerned; was get in; get on with the job; get paid, and get out. Questions of safety all seems to be labelled "A.N. Other". In this particular case the 2nd defendant asserts that he asked for bamboo scaffolding inside the lift shaft, because he thought that this was a safer proposition than the erection of temporary scaffolding. I do not have to determine whether that be right or wrong because the erection of scaffolding, as far as he was concerned, would have meant that the man would have worked from the bamboo poles at each floor level, and not from any working platform. Anyhow, he says that the 1st defendant's foreman on site refused to countenance scaffolding. He, through Tam Shun, had to get on with the job, which meant that the platforms floor try floor were erected by Tam's men. But the materials for the platforms were all supplied by the lst defendant, and it was the 1st defendant's men who dismantled the platforms as they were no longer required. The same practice was followed by the 3rd defendant in that one or more members of the team erected the platforms as the went up.

9. On 15th August two platforms at least were still in place, namely the platforms on the 13th and 14th floors. The platform in question, that on the 14th floor, must have been erected some days before, because it had been used successfully by the men who had originally erected the formwork for the lift shaft. It may also have been used by the casual workers who, I understand, used these platforms to tidy up any mess caused in the process of concrete pouring. It was certainly used the previous day by Mr. Chow when the dismantling work seems to have started. So that it had beer safely used apparently for some two days at least, possibly several days longer, by various people.

10. I had two different accounts as to how one of these platforms ought to have been built, one from Chow and the other from the 2nd defendant. They coincided to this extent, that the basic method of construction was to use wooden poles spread across the gap, and to nail on top at right angles to the poles, wooden boards. Where the methods differed was the means of securing this structure. Mr. Tam spoke about the need to have metal scraps set in floor by floor for this purpose into the floor slabs, which were used to secure the poles. Mr. Chow drew me a sketch, in which he said that the poles were set into recesses in the floors' slaps, but that the boards were secured by brackets at their extremities to the side of the lift shaft.

11. I do not know which method was adopted in this particular case, or indeed anything about it. Nor do I know what went wrong. One would have expected on a site like this, that when an accident happened which could have been fatal if the plaintiff's fall had not been arrested on 13th floor, that there would have been some site investigation by the main contractor : that something would have been done to ascertain the cause of the collapse : that something, one hopes, would have been done to create better safety in the future. Something would have appeared, one would have thought, in the site report which I was told the foreman made out daily. No such report has been produced. Upon the evidence that I have heard, not the slightest attention was paid to this accident. No one took any notice of it. No one bothered to find out the cause, or anything at all. It is apparent that a collapse like this could only have occurred either from some total failure of the materials, e.g. a fracture of one or more of the poles; or a total failure of workmenship, e.g. a failure to secure the platforms to the side. It is totally impossible to make any findings, except I think there is force in the plaintiff's submission that the probabilities should cover both, in a contingency like this, and that the collapse itself raises an inference of failure both of materials and workmenship.

12. In those circumstances, I have to consider questions of liability. I have already said that there was no employer of the plaintiff on site. Equally it has been quite impossible to trace the person who in fact erected the particular platform, and who might have been responsible for any errors in workmanship which existed. What has been canvassed before me is the potential obligations of the three defendants' in statutory duty and negligence arising from two circumstances : 1. occupation; and 2. their capacity as main contractor. I will take the position of the 1st defendant first.

13. It is common ground the 1st defendant was in occupation of the site, but it is denied that they were in occupation of this platform. This involves a rather bizarre sequence. They provide the materials for the platform. The materials for the platform are then put together and erected by a member of the 3rd defendant's team. The platform is then used by members of that team and possibly in the course of the construction and pouring, by members of the 1st defendant as well. Then as the 3rd defendant's team move on up the building, the 1st defendant's men come in again and dismantle the platform. The hypothesis I think, must be that possession of the platform is taken or assumed by the 3rd defendant's team when built, and in some way passes back to the 1st defendant by a concept of abandonment as the work goes up. That sort of proposition on a building site seemed to me totally artifical and totally unreal. The 1st defendant's foreman was is charge of the building site throughout. In the absence of any clear evidence to the contrary, it seems to be quite plain that he was the person who had control of everything on this site all the time; and that time lst defendants were in sufficient occupational control of this site to put them in occupation of this platform. It follows that vis-a-vis the platform the plaintiff was a visitor.

14. That means that I have to turn to the Occupiers Liability Act, Cap. 314. The relevant section here is section 3s. 3(2) defines the "common duty of care" as :

"             a duty to take such care as in all the circumstances of the case is reasonable to see that a visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupiers to be there."

In this case that means the platform is reasonably safe for the plaintiff performing his duties in relation to the erection or dismantling of formwork. The 1st defendant relied upon sub-section 3(b) which entitles the occupier to, "expect that a person in the exercise of his calling will appreciate and guard against special risks ordinarily incident to it." I do not regard this as a special risks case at all. There is nothing peculiar about working places on a building site; nothing peculiar about the safe erection of temporary working places.

15. The crucial sub-section is 4 :-

"             In determining whether the occupier has discharged the common duty of care to a visitor regard is to be had to all the circumstances so that :-(b) where damage is caused to a visitor by a danger due to the faulty execution of any work and construction, maintenance or repair by independent contractor employed by the occupier, the occupier is not to be treated without more (my emphasis) as answerable for the danger if in all the circumstances he has acted reasonably in entrusting the work to an independent contractor, and taking such steps, if any, as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done."

This sub-section shows that neither extreme is true. By employing an independent contractor the occupier does not avoid all liability. He cannot turn round and say this is not my responsibility at all; it is the independent contractors alone. Equally he is not directly responsible for an independent contractor as though that man were his own servant, which had been the suggestion in some dicta in Thomson v. Cremin in the House of Lords 1953 2 ALL E.R. 1185. It shows that the test is whether the contractor himself took reasonable care is the respects indentified. This matter came before the Court in England, where the Act is in identical terms, in AMF International v. Magnet Bowling (1968) 2 ALL E.R. 789, where at page 801 one finds this "Counsel for the plaintiff submitted (the counsel concerned was Stocker L.J. as he now is) first, that unless someone who was sued under the Acts an occupier could bring himself within section 3(4)(b) (in our numbers), it was of no avail to him to establish that he had employed a qualified independent contractor and that the latter had been negligent." That submission was accepted as correct by Mocatta J.. So one looks then to the whole circumstances to see whether the occupier has taken such care as is reasonable.

16. There is a useful analysis of the position in Clerk & Lindsell 15th Ed. paragraph 1233 on page 623. It is expressed in the text in terms of the building owner occupier, but applies equally to the building contractor occupier. One has to ask oneself first of all : are these functions something within the reasonable competence of the experienced building contractor. If the answer to that is "yes", as it is in this case, then four things are suggested by Clerk & Lindsell which have to be looked at. These are:

If the answer to those questions is "yes", the editors goes on; "he will be held to have discharged his common duty of care."

17. I think it is convenient to take each of those questions in turn. Did the 1st defendant act reasonably in entrusting the work to an independent contractor? As far as the formwork is concerned, I think the answer must be "yes". But the crucial question here to my mind is whether they acted reasonably in entrusting to the contractor the construction of the working places required for such formwork. The problem here is that there was no entrusting at all. There was no consistent policy. There was no system. Such policy as there was, is really a policy of drift. As I indicated some of the platforms were caused to be constructed by the 1st defendant themselves, e.g. the scaffolding. Some were not, as in the lift shaft. Those that the 1st defendants caused to be constructed they also caused to be inspected, so their witness told me. As far as the scaffolding was concerned, they arranged to have some experienced person come on site to check that the specialist scaffolding contractors were doing a proper job. But as far as the platforms are concerned, what he told me was "our company would not do anything about checking or visiting the platforms because they (that is the sub-contractor) should know whether the platforms are safe or not". The upshot was that as far as platforms were concerned, nothing was done for two reasons. I was told. First, because it was for the sub-contractors to set their own standards of safety sufficient to them; and secondly, because I was told by this gentleman that they, the 1st defendants, had no one on site, who was competent to make any inspection. The witness, who gave that evidence, was the man who was described as the head office assistent foreman. He worked at head office not on any particular site. This seems to me, with respect to the 1st defendant, to be about as total an abandonment of responsibility for safety, in relation to these working platforms, as one could find; when you consider that the platforms were used by the defendants' own men, they would dismantled by the defendants' own men; and they were built with the defendants' own material. So in relation to the first question, the answer is "no".

18. Secondly, did they exercise reasonable care in selecting the contractor? I am prepared to assume that the 2nd defendant was a careful man. But he did almost nothing. He exercised no supervision at all over the work. He was going to sub-contract the whole job, and, I must conclude, that the 1st defendants from their knowledge of him were aware of this. They certainly imposed no restriction upon sub-contracting. There is nothing in the contract which excludes the ordinary right to sub-contract in the circumstances of this case. No questions were ever asked, on the evidence that I have heard, about either of the sub-contractors that were employed. Indeed, the attitude of Mr. Pang, the foreman on site, as described by the 2nd defendant, is that he did not mind who did the work so long as it was completed. The only conclusion I can draw here is that the answer to this is "no"; that no one really worried at all about the competence of the contractor, certainly in the context of safety, so long as the work was done.

19. The next question is, were reasonable steps token to supervise the carrying out of the work? There was no supervision at all. There was no attempt by the foreman to supervise, I have the greatest difficulty in accepting that he was not capable. I cannot really contemplate a person qualified to act as foreman on the site, who was not capable of supervising an elementary construction like a working platform. But if he was not capable as Mr. Choi told me, then no question arises. This in itself is negligence in failing to employ a capable person. There must have been many opportunities to check the materials : How the poles were doing in the course of the work, whether any of them were unsafe or cracked : many opportunities for checking the construction methods, whether or not the poles and/or the boards were properly secured : many opportunities of checking whether the straps which had to be specifically inserted whilst the floors slaps were being co-instructed, were in fact being put in position. But the answer is nothing was done. Was it reasonable to do nothing? In my judgment "no".

20. Fourthly, was there any post-construction checking. Again the answer is "no". Therefore, it seems to me that the 1st defendants have wholly failed to satisfy the onus which is put upon them under section 3(4)(b). Having done nothing, they are responsible even though the ultimate act of negligence was that of an independent contractor and an independent sub-sub-sub-contractor.

21. There were two possible alternative ways of arriving at the same result. A main contractor on site, who is not also an occupier, may well owe substantially the same duty of site management and co-ordination as, in my judgment, an occupier does. That seems to be the conclusion of the court of England in McArdle v. Andmac Roofing (1967) 1 ALL E.R. 583, assented to by Lord Denning in Smith v. George Wimpey (1972) 2 QB 329 at page 336 and also applied by His Honour Judge Fay in Clare v. Whittaker (1976) 1 ICR page 1 .  A third alternative is by the inference arising from a failure of the materials in this case, that the 1st defendant has lead no evidence to show that the failure in this case was not attributable to any failure in the material supplied by them. But these are subsidiary routes. My basic conclusion is founded upon liability as occupier.

22. Pleas of contributory negligence have been raised by the 1st defendant against plaintiff. These, in my judgment, are pure speculation. The first is that the platform was overloaded. When one knows nothing whatever about the design loading of the structure or the actual loading this seems to me to be totally impossible. Secondly, it is said that he did not check the platform. He admitted that he did not check tae platform. But there was nothing suggested to him as to why he should personally check a platform which his mate had been using successfully for a day and a half before him, and which had been used successfully by some of his other colleagues before him. Nor was it suggested to him what he might have found if he had done that check. I am quite unwilling and unable to speculate that inspection by him would have found some unspecified defect, which would then have avoided all these problems. So, in my judgment the 1st defendants are liable to the plaintiff for 100% of his injuries.

23. I then turn to consider the position of the 2nd defendant. He did very little. He entered into the main contract. He entered into successively a sub-contractor with Tam Shun and a sort of subcontract with the 3rd defendant. His only function on site was periodically to visit it to deliver nails. He was emphatic thatsafety was not his problem, and did nothing at all to advance safety on site. If he was under arty duty in that respect, his evidence was the best possible evidence of a clear breach. He retained the benefit of his main sub-contract in the hope of profit, and as a result he retained a contractual risk. The only question is whether by retaining the benefit of that contract he was also accepting or assuming a tortious risk. There here two ways of putting the matter. First, is he vicariously liable for the negligence of his sub-contractor's sub-contractor? Or secondly, was he under a persoual duty to see that care was taken.

24. The narrowness and the artificiality of the difference between as employee and a labour-only sub-contractor on the site like this was persuasively pressed upon me by counsel for the plaintiff. It is ridiculous, he was suggesting, that two totally different conclusions in law could come from a factual situation where the essentials were barely distinguishable. I sympathise with this view point. The situation and the distinction is totally artificial. But the plaintiff insisted that he was a contractor and insisted that there was no one there to give him instructions. This distinction is law is deep rooted. Historically and still currently it stems from control. There in a fundamental difference between a contract of service and a contract for services, however narrow the dividing line sometimes is between the two. The policy of the law is, I believe, fixed. It is that special relationship apart, a man is not normally to be held responsible for the negligence of another, in the absence of control. There was no control exercisable by this defendant over, who ever it was, who built this platform. Therefore there is, in my judgment, no room for any vicarious liability. Putting the matter in another way, for a man like that,the independent sub-contractor defence is sound.

25. Looking at the alternative way of putting it; vas he under a personal duty; was he under a duty not simply to take care but to see that care was taken? That is true of a number of extra hazardous activities. But building construction in Hong Kong is not yet, I think, to be so regarded, notwithstanding any initial western reaction to the sight of men working on bamboo scaffolding. The occasions in fact were there is a duty to see that care is taken are exceedingly few. It was so put, I accept, against a main contractor on site is McArdle's case. But that was by reason of the physical proximity of the people all working together on site, coupled with the duty to co-ordinate. But this defendant was nowhere near the site. He was a very occasional Visitor. The only proximity, so called, was the proximity of the contract. I cannot see that that suffices in law. So in my judgment the claims against the 2nd defendant must fail.

26. I then turn to the position of the 3rd defendant. This team, associated with the 3rd defendant, all seem to me to be co-adventurers is relation to each job that they undertook. Each, I think, owed a duty of care to the other. Each in this category included those who constructed the platform. The inference is that the members of the team who constructed this platform were in breach of such duty. In those circumstances, the only way that the 3rd defendant can be made liable to the plaintiff, is upon the hypothesis that he is vicariously liable for the assumed negligent act of his co-adventurer who constructed this platform.

27. The first problem facing the plaintiff in that formulation is that it bears no relation to the Statement of Claim. The Statement of Claim proceeds upon the basis of employment and occupation, and neither of those claims really leave ground. So, I think as far as the 3rd defendant is concerned, he was entitled to call no evidence and say that this claim does not run against him. The alternative argument as to whether a co-adventurer is liable in these circumstances was scarely developed, but I mindod to think that it probably fails. The vicarious liability of partners is dealt with in section 12 of the Partnership Ordinance. The English Act which is identical in these circumstances, was considered in the case of Meekins v. Henson (1964) 1 QB 472, and it was concluded that this is the vicarious liability section. If that be right, liability is expressly excluded to "a partner in the firm" because that is the phrase which appears in that section. The complainant has to be someone who is not a partner in the firm. So that apart from the formidable procedural difficulties of knowing how to sue a partner or co-adventurer in tort, I think the law probably is that you are assumed to take your partner, for better or for worse, for negligent or for careful, and does not allow any such claim to be made. It follows in my judgment that the claims against the 3rd defendant fail also.

28. The last matter upon which I must make some observations is the question of time. This case was estimated to last two days and was in the running list. I had the gravest doubts about this when the case first started. But I was persuaded to go ahead upon the basis but I then had three days available, and I was going to deal with liability only and not the whole case. I am giving judgment on Day 6. By about half way through Day 2 it was painfully obvious that three days were not sufficient, and that my existing fixture which was due to start on Day 4 of this case, then had to go. This is something which is happening time and time again. It makes a nonsense of fixture lists, and causes many problems to everybody, if the court cannot rely upon the parties' estimate. I am not asking for warranties. I am well aware of the problems of estimation. But with three defendants, a two-day estimate for the whole case was ridiculous, and it has been demonstrated to be ridiculous.

29. There is little that the Courts can do to protect themselves against this sort of casual irresponsibility. It is so easy for the parties to get themselves on and started. Then the running case rule will take over and they are alright. The people who are suffer are those in the fixtures that follow. But I wish it to be made known, that if I can see this sort of thing happening, and is perfectly apparent to me on Day 1 that the estimate is going to go wildly wrong, then I am going to react in the only way the Court can, and which I hope will then encourage more thought. I will refuse to start the case, and I will direct that the costs throw away by that adjournment be personally paid by all the solicitors concerned who were responsible for the estimation. That would be very unpopular. But is only by taking action of that nature, that it seems to me that I can do anything about stemming this tide of impossibly inaccurate estimates, I do emphasize that I am aware of the difference between the estimate that goes wrong however well intentioned at the time, and the one that is obviously impossible.

30. As far as this case is concerned, I think that the only order I can make now is to declare that the 1st defendant is liable in breach of statutory duty and in negligence to the plaintiff; and to give judgment for the 2nd and 3rd defendants against the plaintiff. That will lend to extensive arguments about costs.

31. After argument, I now deal with the question of costs. It may be convenient to look at it on stricts lines first of all, and see what result that produces. The plaintiff having failed against the 2nd and 3rd defendant is primarily liable for those costs. The question can then be put how far is it fair to order the plaintiff to recover those costs from the unsuccessful 1st defendant. As far as the 2nd defendant is concerned no problem arises at all. The 2nd defendant was specifically blamed and brought in as a result of such blame originating in the 1st defendant. In the circumstances there is no question to my mind that the 1st defendant has to bear the 2nd defendant's costs.

32. The 3rd defendant is much more troublesome, for two reasons. He had succeeded, but he succeeded perversely upon a defence which he never raised. The plaintiff originally claimed that he was employed by the 1st defendant. He was encouraged to do that by Form 2, I think, it is, under the Workmen's Compensation Ordinance. The 1st defendant retaliated and said no, you were employed by the 2nd defendant. The 2nd defendant retaliated in part by saying, no I did not employ him, he was engaged by the 3rd defendant. Rather surprisingly the 3rd defendant met that by saying the plaintiff was employed by the 1st defendant and/or by the 2nd defendant. There is considerable force in what Mr. Bahwari for the plaintiff says that when he started opening this case, the issue on the pleadings was not whether the plaintiff was employed but by whom. It was only in the course of his own client's evidence in chief, that I think the hideous truth may have started to stare him in the face that employment in reality was very much in issue, and that he was in some trouble upon it. But this was thanks to no help from the pleadings, and certainly to no help from the 3rd defendant. This is a material factor when I am considering the 3rd defendant's costs. Because as I say he has won on something which he never started to raise. If he had raised it at the proper time which he should have done, then the whole case could have taken a very different course, and questions might well have been directed to the plaintiff, before trial, which plainly were not so directed. That is the first point.

33. The second complication is this. The claim was being put upon two bases employment and occupation. The conclusion which I have reached as a matter of law, is that the main contractor is the person, whether you look at him as occupier or as main contractor on site, who bears the responsibility for this situation, and that the whole chain of defendants arose here because of the 1st defendant's attempt to shift that responsibility under both heads onto other's shoulders unsuccessfully. Having regard to my findings about the 1st defendant's method of business and their knowledge of the 2nd defendant, it must have been apparent to anyone in the 1st defendant's employ, who was familiar with the situation, that if they blamed the 2nd defendant it would not stop there. It would be passed on down to other people on site.

34. The third peculiar feature of the case is that plaintiff, 2nd defendant and 3rd defendant are all legally aided, they are all different forms of the Director of Legal Aid. This creates another situation particularly on the pleading point. The Director of Legal Aid (plaintiff) has been embarrassed and prejudiced by the Director of Legal Aid (3rd defendant) from the form of the pleading.

35. I think that all I can do is to take a broad view here in trying to be fair. My conclusion as far as the 3rd defendant is concerned is this. Having regard to the form of the pleading I do not think it is right that he should recover the whole of his costs. In the circumstances of this case, I think the proper percentage of recovery is 50%. Second, having regard to the way in which this matter was conducted, if I were ordering 50% of his costs to be payable by the plaintiff, I would allow the plaintiff to pass or the same percentage to the 1st defendant. Since they are all solvent parties, I think the simple way of giving effect to that is to make the following orders for costs which is to order the 1st defendant to pay 1. the plaintiff's costs to be taxed if not agreed in each case; 2. The 2nd defendant's costs to be taxed if not agreed; and 3. 50% of the 3rd defendant's costs. I also make orders for legal aid taxation of the costs of the plaintiff, 2nd and 3rd defendants.