WONG CHI WING v. CHUN WO BUILDING CONSTRUCTION LTD AND ANOTHER

HCPI 1476/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1476 OF 2000

____________

____________

_______________

J U D G M E N T

_______________

1. On the 26 December 1997 the Plaintiff, a toilet extraction worker employed by the 2nd Defendant, was working on the first floor of a building under construction and/or fitting out by the 1st Defendant, the principal contractor. A number of mobile chemical toilets - probably only two - had been installed at that level. There were also mobile toilets on the ground and 4th floors. The actual number of toilets on each floor is not relevant.

2. The normal sequence of operations was for the Plaintiff to drive the waste tanker to the 4th floor where the extraction hose ran directly from the vehicle to the toilets. Then he drove it to the ground floor where it was positioned so that the waste from the first and ground floor toilets could be extracted. It was not possible to take the vehicle to the first floor.

3. The procedure followed to enable the extraction of waste from the mobile toilets on the first floor was to elevate the extraction hose vertically from the ground floor outside the building under construction up to the open edge of the first floor by the vertical pillar, to which it was transiently linked by a piece of rope or string over the end of a metal guard rail which started (or finished) at the pillar in question. From the plans and photographs this pillar has been referred to as 27C. The hose then ran along the floor itself in an irregular fashion so as to avoid having to go over any obstructions or material deposited on that floor, which might facilitate any blockage within the hose.

4. On the day in question the Plaintiff was holding the extraction end of the hose when it became apparent that the extraction was not functioning. The pump unit was still operating. He walked along the floor following the outside line of the hose to try and identify where the blockage was. He thought it would probably be near pillar 27C. As he did so something caused him to lose his footing, he slipped and fell over the edge of the floor onto a heap of rubble below. In falling he tried to grab hold of something, made contact with a chain, but could not prevent what occurred. As a result he suffered severe spinal injuries and will never work again. He sues the principal contractors and his employers.

The nature of the Plaintiff's employment

5. He became a cleaner in this industrial field in about 1984. In his early years he was not required to drive the vehicle. He took up employment with the 2nd Defendant in about 1994. By that time he had some years of experience of delivery and collection of mobile toilets to and from construction sites. Initially in his employment with these Defendants he worked with a colleague Lam Chi Chau whom he had known before this employment started. Lam did the driving. After about 6 months he began driving himself and the work he carried out was usually a one-man operation.

6. The waste tanker, carried a hose which was already connected to the pump unit. When the vehicle could be driven reasonably close to the toilets to be serviced, this hose was sufficient. If however the position of the vehicle was not close enough to enable that hose to reach the toilets it was clear that an extension was required. This, when the occasion arose, was then fitted to the existing hose by means of another short section of hose.

7. Although ideally the hose should be kept straight so as to reduce the risk of any blockage as the extracted material was drawn by vacuum process along it to the tanker, it is easy to see how, on a construction site, materials or other obstructions would prevent this. Furthermore the surface may be undulating and varied causing the operator to lay the hose along the flattest section of the surface. It may not of course, always be possible for the operator to achieve this. Both the features referred to have some relevance to the circumstances of this accident. Part of the extension hose was coiled near pillar 27C.

The Site of the Accident - Airport Railway, Tsing Yi

8. The main contractor at the material time was the 1st Defendant. The area concerned was the podium of the Tsing Yi Station at Tsing King Road on Tsing Yi Island. The work was described by Mr Wong Tak Ming, employed as site representative by the MTRC, the developer, as renovation and fitting out works of a designated portion of the podium. The principal construction was for commercial ventures, car parks and ancillary services. The 1st Defendant commenced work in about April 1997.

9. Part of Mr Wong's job was to ensure that there was no unsafe practice or working conditions. The project was regard as highly important for the MTRC so safety was at a premium. He inspected on a daily basis and within the week would have covered every part of the site. He caused letters to be issued to the 1st Defendant whenever he saw or became aware of unsafe or bad working practice or conditions.

10. There was a system of weekly safety walks but Mr Wong was not present on all of these. However, he would have read all the reports resulting from these walks. The reports contained the names of all attending the walks and the recommendations made consequent upon the inspections carried out on the walks.

11. During the latter part of the period in question (April to December 1997) the 1st Defendant was using the first floor level edge as a refuse or rubble discharge point. They used a mini-loader to push the material to the edge and over to the ground level. They were required to do this in the evening at the end of the working hours. They were not allowed to do it during the working day. The photographs show such accumulated material at ground level, beneath the first floor edge.

12. His recollection was that the 1st Defendant used a thick metal chain, about one metre above the ground, to mark off the edge of the floor. In early December, this had replaced what was described as a temporary railing. There was also a warning tape along the chain. The metal railings had been left in situ, on the site, by the site constructor, Maeda when they vacated the site in or about March 1997. Photograph no. 27 of Exhibit P1 shows the remnant of this railing. It had originally extended from pillar 27C across the opening edge of the floor to an internal wall on the opposite side from pillar 27C. It had stanchions which can clearly be seen in the photographs; the railing was obviously made so as to fit into or onto these with ease although it might, in Mr Wong's view, take 2 or 3 men to effect this.

13. He understood a Mr Ronald Mak and Ms Agnes Wong to be the safety officers employed by the 1st Defendant on site, and expected a foreman to be in charge of each floor. Every fortnight a site meeting was arranged in the site office and any accidents on the site were discussed at that meeting. The Labour Department closely monitored the situation. The representatives just appeared on site without notice but Mr Wong indicated that if the Labour Department wanted to investigate a serious accident he would expect to be told.

14. It is an astonishing fact in this case that Mr Wong was never informed of the accident to this Plaintiff but learned of it through preliminary steps taken to prepare this case for trial some 2 or 3 months ago. If he had been informed as soon as he ought to have been - within 24 hours of it happening - I have little doubt that Mr Wong would have put in hand a thorough investigation.

15. I shall return to other aspects of Mr Wong's evidence when I deal with other stages or features of this case.

The 1st Defendants

16. These Defendants called no evidence from their employees in this trial and so what is known about their practice and procedures comes from other sources and inferentially. Mr Wong Tak Ming was called on their behalf.

17. Having taken over the site in about March or April 1997, they were clearly involved in the safety observation and policy which concerned the M.T.R.C.

18. There are several records relating to the Weekly Safety Walks. The first is for the 22 September 1997. Three employees of the 1st Defendant attended on that including Mr Ronald Mak. It is in fact signed by him as a safety inspection report. It included in respect of the 2nd, 3rd and 5th floors the following item:

"Replace the damaged fences of lift shafts; building edges and large floor openings and maintain in good condition."

And for the 2nd and 5th floors:

"Maintain the site tidiness."

19. The following week also had a Safety Inspection Report signed by Ronald Mak which itemised, as far as the 1st Defendant (and other contractors) were concerned, shortcomings in safety relating to the wearing of safety helmets, substandard working platforms on the site area generally and, amongst others, the following in respect of the 1st floor level:

"Part of the barriers of the floor edges were not so secure.

The barriers to floor edges should be checked and re-instated at once.

Barriers of floor edges must not be removed at any time."

At the end of October 1997 another report signed by Mr Ronald Mak referred to Chun Wo's lack of guarding around or over a large floor opening and:

"Working platforms have no guard rail and safe means of access"

in relation to the 2nd floor.

20. Once again Chun Wo's safety failings were highlighted in a report of the 5 November 1997 (again signed by Mr Ronald Mak) in respect of the "Parapet: Podium."

"No guard-rail was provided at the building edge. It was suggested to install a warning tape to fence off the building edge and instruct all workmen not to access to the parapet area unless wearing safety belt."

21. On 3 December 1997 Mr Mak signed the Inspection Report which included, in relation to Chun Wo, on the 1st and 2nd floors (G.L. 27(C-D)

"The anchor points of the temporary steel chain must be checked. It must be secure."

and in respect of the 2nd floor:

"The barriers of the floor edge were removed. They should be re-instated at once to prevent fall of persons."

22. Almost one week later the entry on the Report (signed by Mr Mak) concerning Chun Wo and the 1st and 2nd floors was:

"Floor edge railings were replaced by steel chains. Area should be excluded from access by warning tapes."

23. The report for the 24 December 1997, the last before the accident in question, included in respect of the 1st (and 2nd) floor

"Warning tape should be reinstated in every morning after rubbish removal at last night."

24. There is no record or report of the Plaintiff's accident on the 26 December 1997 in any book on site.

25. Mr Wong's understanding was that the 1st Defendants, Chun Wo, removed the railings left by Maeda and replaced them with a chain. This is consistent with the various entries in the inspection reports referring to chains replacing the metal railings. The photographs show, unequivocally in my view and sensibly accepted by all parties, that there was some remnant of rail from pillar 27C to some point along the front edge of the floor.

26. It seems to me, as a matter of logic, and in accordance with the natural, but shortsighted desire of contractors and/or contract workers to cut corners, that the removal of the metal railing and its replacement by a metal chain was to facilitate the pushing of rubble and débris over the first floor edge by the mini-loader. The bucket could easily slip under a chain suspended one metre above the floor surface and thus push the material right over the edge. The metal railing on the other hand would impede this. However since the operation was to take place at the end of the working day there was no reason why the metal railing should not be temporarily removed and replaced after each such operation.

27. It is difficult to be certain whether the whole of the metal railing was removed in early December 1997 or only a part of it. It is not clear from the photographs how much of it was actually left lying down having been lifted from the supporting stanchions but initially only a part of the railing may have been removed to enable the mini-loader to push the rubble over the floor-edge. More substantial removal may have come later. It was certainly not necessary, in my view, to remove the railing altogether. It would have been simple to replace it after the mini-loader had done its work.

28. According to Mr Wong there was no sign saying that the floor area was used for rubble or débris accumulation and that a machine was operated at the end of the day to clear it over the edge. There was however some sign on both of the internal walls, bearing the word 'DANGER' but with no explanation of the nature of the danger. No such notice can be seen on the photographs. It may well not have existed at the material time. In any event it had no value in relation to the danger resulting from a floor edge which had no effective barrier. The red warning tape was similarly of negligible value. Sometimes it was loose and sometimes it was wrapped around the chain. The chain itself as referred to in an inspection report was in such a state that the anchor points required checking. Again, photographs show it lying along the floor level in which position it afforded no assistance as a barrier or warning.

29. The overall picture gleaned from Mr Wong's evidence, the records of the inspections and the photographs, is one of neglect of safety measures, and unsafe working conditions with deficiencies recurring.

The Second Defendants

30. The second Defendant's contract with Chun Wo included the renting of a number of a mobile chemical toilets and the cleaning of and extraction of waste from them. Mr Chan Kwong Ming, the business manager of the second Defendant, was responsible for arranging the contract. He visited the site and noted what was required in respect of the servicing of the toilets. This included the fact that there was no vehicular access to the first floor and the need for an extension hose to reach the sludge tanker from the first floor level.

31. At the end of each session on the first floor the hose extension would be coiled and placed where it would not cause an obstruction. No objection to this practice had been received from Mr Chan of Chun Wo. At the time that Mr Chan Kwong Ming last visited the site the metal railing appeared to be in position, and across the extent of the front edge. He was not informed that dumping of rubble was taking place on the front edge of the first floor. Furthermore, he was not asked to run the hose from ground floor via the staircase. He said that he had considered a route via the staircase but did not consider it a good method - there was insufficient lighting, the staircase was primitively made (at that stage is what I presume he meant) and the hose could form an obstruction. I agree with his overall assessment.

32. In the bundle of documents is what purports to be a memo dated 2 December 1997 from Mr Yip of Chun Wo to the second Defendant in effect stating that the extension hose must be routed via the staircase and not over the slab edge. Mr Yip was not called to prove this document, there is no reference to the topic in any of the inspection reports nor any criticism of the second Defendant in this regard. It is the only "document" on this topic. I am not prepared to rely on it in any respect. I do not think it is genuine. Its contents do not form any allegation against the second Defendant in the first Defendant's Re-Re Amended Defence.

33. Mr Chan (of the second Defendants) was asked about the provision of safety boots for the Plaintiff and how he could reasonably use the float of money for expenses and also the availability of Wellington boots for this type of work. I do not propose to consider this aspect in detail because I will deal with the matter and is limited relevance at a later stage.

34. He said blockages in a hose were quite common. He was aware that a hose would vibrate in the course of the operation but not move from side to side. If it was coiled by the column he would not expect it to move much - perhaps more than a few inches but not over 3 - 4 feet. I am not entirely clear where this idea comes from. It did not appear in the Plaintiff's evidence or statement or declaration. I suspect that it is a hypothetical calculation derived from the Plaintiff's sketch plan of the first floor and the hosepipe on the day in question, the defendants somewhat arbitrary plan based on scale, and the Plaintiff's evidence that during the operation the hosepipe was wont to move to some extent. In my view any tendency of the hosepipe to move under vacuum force or influence - and such extraction hoses can in certain circumstances move or creep to some extent - has no material relevance to this accident. The video tape shown during the trial equally has no material relevance.

The Plaintiff's case

35. Although there was some examination of the different rates of pay for the Plaintiff for the different levels ? a higher rate for the work on the first floor no doubt because it took longer ? there is no significance in this. If he was trying to do his work more quickly on the 26 December ? normally a public holiday ? I am not at all surprised. I do not think that this made him less careful.

36. Furthermore, some questioning was concerned with the position of the sludge tanker whilst the first and ground floor extraction operation was being carried out. I am satisfied too that this is no longer of any relevance even if it had been at any stage.

37. Finally, by way of elimination, the practice adopted by the Plaintiff of securing, albeit with a degree of flexibility, the extension hose to the pillar 27C over the metal railing at that point was an entirely sensible and practical method of facilitating the work on that level. No one told him to desist, there was no risk attached and he was, I accept, never told to adopt any other route for that hose.

38. The Plaintiff had started work at the site in about July of 1997. The practice was for him to park the tanker on the ground floor near to the staircase. The staircase gave him access to the first floor. In due course, I have already described the system adopted to afford access for the hose to the first floor. By September more toilets were on site requiring extraction and he worked on the first floor and then, additionally the 4th floor.

39. The toilets on the first floor were initially near the first Defendants' office but after a few weeks were moved. It is apparent that this has no materiality. At the time of the accident the approximate distance between the toilets and the pillar 27C was 40 feet. His normal practice after the operation was to leave the hose extension referred to as the 'B' hose, coiled up at the pillar 27C with the part which was connected to the tanker's main hose, hanging down to ground level as shown in the photographs. These photographs, taken by Mr Chan of the second Defendant, are of inestimable value in this case.

40. His recollection was that when he started work on the first floor the metal railing was in straight up, i.e. vertically fixed, position. That accords with the evidence of Mr Wong Tak Ming. It extended from pillar 27C across the open front floor edge. At no time did he have cause to go outside that railing in the course of his work. There were no warning notices by the pillar 27C, and no red/white warning tape. At no time did he see that the metal railing had been removed.

41. On the day of the accident he was carrying out his usual procedure. He was not aware that the railing did not extend across the floor opening. When he had carried out the procedure on the 24 December, two days earlier, his recollection was that the railing was in an upright position along the width of the opening. He may or may not be correct about this. The railing may have been put back in its proper position fully or only in part, or he may have been misled by the piece of railing, seen in the photographs, which gave him the impression that it was all or substantially in situ. Mr Dennis Wong Tak Ming said that on the 24 December when he went past there was only a chain with some warning tape running along the opening about one metre in height above the floor surface. He was unsure if he saw the metal railing in a dismantled (he probably meant unfixed) state on the 24 December. There was an entry in the Inspection Report for the 24 December (see earlier §23) relating to the need to reinstate every morning the warning tape at the first floor level. I do not think it safe to exclude the possibility that at least some part of the metal railing was in situ or appeared to be by the morning of the 24 December to give him the impression that all was as usual.

42. The photographs show that there were areas of débris or rubble on the first floor level as well as material, supplies or equipment. These were obstacles and hazards to a greater or lesser extent depending on the nature of the work being carried out on that floor level.

43. I accept the Plaintiff's evidence that a blockage had occurred in the hose which caused him to follow it back looking at it to see if he could identify the point at which it had occurred.

44. I think it entirely reasonable for him to consider that some of the remaining coils of the hose may have uncoiled to some extent and snaked nearer to the opening of the floor. He was entitled to rely upon the notion that the metal railing was still in position and offering protection to anyone working on that floor. In my view it was the height of folly to conclude that a chain, which was unsatisfactorily fixed in any event, could, with or without any red/white 'warning' tape, afford any protection to anyone. The whole purpose of railings or barriers at openings is to provide ever ready protection for workmen who cannot carry out their work efficiently and expeditiously unless they concentrate on it. They should not be expected to look over their shoulders at intervals to see if some unreasonable human being has removed or failed to replace a protective railing. They are entitled to rely upon the reasonable expectation that a state of affairs which did afford them protection would continue for as long as such protection was needed. All conscientious workmen try to carry out their work efficiently and expeditiously and, rely and are entitled to rely upon their employees and/or occupiers of the site where they work, to provide all reasonable protection whether required by law or simply in discharge of the duty of care owed to them.

45. The chain fixed securely at some times and insecurely at other was at best only a potential means of alerting workmen to the proximity of the edge. If there was red and white tape around it, that would facilitate this potential. But it is probable that the ineffectiveness of this chain and any coloured taping, flimsy in itself, as reported on the inspections, was caused by the bucket or some other part of the mini-loader, fouling the chain as rubble was pushed to and over the edge. The stress on the chain would loosen any inadequate form of fixing and quickly cause the chain to become slack. On the day in question the chain was so slack that the greater part of it was lying on the ground. It afforded no degree of warning at all. The anchorage points of the chain had called for action in the inspection report of the 3 December (see §21).

46. The result of all the evidence concerning the circumstances of the accident is this. The Plaintiff was carrying out his job as normal. The blockage occurred and caused him to see if he could find the point in the hose where it had occurred. This took him closer at some stage to the edge of the floor although it is impossible to say how close he came to it. He lost his footing on some rubble, débris or other material lying around the floor - it is easy to see the variety of material from the photographs; some of it appears to be plastic or polythene bags or other such items. He then slipped over the edge there being no barrier to prevent this. There was unarguable negligence and breach of statutory duty which brought this about. I shall consider the matter of the Plaintiffs' footwear a little later.

The negligence and breach of duty of care of the first Defendants

47. They owed a duty of care to all persons working on the site whatever the floor level. This duty of care extended to the employees of subcontractors working on the site. They took over the site from Maeda and of their own accord removed the metal railing or barrier, the purpose of which was to protect workmen from falling from the levels above ground level, and replaced it with a metal chain and some form of red and white plastic ribbon. By no stretch of the imagination can that have constituted protection for workmen, whatever theoretical value it may have in ideal circumstances as a warning of the proximity of the edge. There were no other adequate or appropriate safety measures or warnings. The 'Danger' notices referred to were imprecise, and inappropriately sited. On the day of the accident the measures if they then existed were quite useless, as they had been, even for their limited purpose, on earlier occasions. It was in practical terms unnecessary to remove the metal railing. All it did was to save about 10 minutes working time of the 2 or 3 employees required to lift it off its stanchions and replace it after the mini-loader had done its clearance of rubble, etc. The portion left in situ or off its stanchions would, at a glance, provide a false impression of a protective barrier. In fact Chun Wo had little if any idea of the concept of effective safety measures as can be seen from the Inspection Reports preceding this accident. Finally, on this aspect, there was no investigation of the accident, and no true record made. That in itself gives some indication of the concern for safety. There was a clear breach of Regulations 38 A and B of the Construction Sites (Safety) Regulations.

48. The Plaintiff's claim against the first Defendant succeeds on both bases.

The negligence/breach of duty of care of the second Defendants

49. The employers owe a primary duty of care towards their employees to provide a safe place of work which is non-delegable (see Wilsons and Clyde Coal Co. Ltd. v. English [1938] A.C. 57 and Davie v. New Merton Board Mills [1958] I.Q.B. 210.) However, when an employer, as in this case, is a subcontractor to the occupier of premises on which that sub-contract work is to be carried out, and has taken reasonable steps to ensure that there is a safe place of work by inspecting the site and ensuring that the occupiers were responsible and competent then the employer had discharged his duty. This is to be distinguished from those cases concerned with the duty to supply a safe system of work. (See Cook v. Square D Ltd [1992] I.C.R. 262.)

50. In my view the second Defendants discharged this duty. Through their employee, Mr Chan Kwong Ming, who had inspected the premises and had seen the metal railings properly in situ on a number of occasions, they had taken reasonable steps to ensure that proper steps had been taken for their employees' safety. His last visit before the Plaintiff's accident was in November. It was in December that the first Defendant replaced the metal railing wholly or substantially with the metal chain. I do not consider that he, or his employees can be criticised for not visiting in December. The removal of the railing and its replacement by a chain was such an unforeseeable and risky step that no sensible person would have anticipated this as a possibility. In my view the second Defendant cannot be faulted and the catalogue of allegations against them by the first Defendant and of necessity adopted by the Plaintiff, do not hold water. I am satisfied too that at no time did the first Defendant criticise the method of running the hose, or suggest that the staircase well must be used.

Contributory negligence and the Plaintiff's footwear

51. I have indicated earlier that there was no action or omission on the part of the Plaintiff in relation to the operation of the hose, or how he dealt with the blockage, which I find could arise quite naturally, easily and foreseeably and involves no criticism of or failure on part of his employers in respect of the equipment supplied, or the system he adopted generally. It is not rational in the circumstances to saddle him with knowledge of the chain as replacement for the railing. It is not incumbent upon him to make daily inspections of the form of barrier for his protection at the floor edge. I reject as he did, the suggestion that he fell because he was too near the edge and shouting to his colleague. There is absolutely no evidence to support this. It would not be a reasonable inference to draw from Mr Fok's account of what he heard and saw.

52. But what of the fact that he was wearing some soft shoes instead of Wellington boots or safety boots at the time of the accident? Much evidence was concerned with the employers' system of provision of such boots, how he should go about obtaining them, the sources from which they could be obtained, and whether there was any specific understanding between the Plaintiff and Mr Chan that the latter would purchase some safety boots for him, his previous pair having worn out.

53. Interesting though the debate has been I find it inconsequential. The first Defendant made no allegation against the Plaintiff in respect of his footwear - only against his employers. His employers, the second Defendant, for their part, alleged only that the Plaintiff failed "to wear shoes with non-slippery soles." Of course all workers on a construction site should wear what are described as safety boots with steel re-inforced toe-caps. Any worker engaged in other industries where there is any risk of objects or equipment falling to the ground should also wear such boots. Appropriate foot wear should be worn to meet other hazards. Where such risk occupies a very small proportion of the working day employees are very tempted to wear boots or shoes which are comfortable to work in providing they meet other hazards e.g. slippery surfaces. It is the employer's and the site contractor's duty to require the workers to wear appropriate footwear where such risks exist.

54. The Plaintiff said he had asked for a new pair of safety boots or, at least, from what he said, it is clear that he needed a new pair. There is evidence from Mr Fok Wing On that he found the Plaintiff's safety boots on the truck. I am dubious of this evidence. I am satisfied that if the Plaintiff had a pair of serviceable safety boots that he would have worn them. Mr Chan said that it was up to the employee to get replacement boots when needed. He said he did not agree to get any for the Plaintiff. All this evidence is unsatisfactory and contradictory. However I am not prepared to make any positive findings in the light of the paragraphs which follow, nor compensate for any inadequacy in the pleadings on this issue.

55. Mr Fok at some stage suggested that his boots, a pair of 'Caterpillars' brought by himself and which he brought from his previous employment, would have given him some stability on rubble or débris and lessened the risk of slippage. This, of course, depends on the nature of the rubbish concerned. There is no rubberised sole or other composite sole which is proof against slippage in every conceivable circumstance.

56. There is no evidence as to precisely where the Plaintiff slipped or as to the nature of the material on which he slipped. There was a wide variety of material lying around on the section of the floor nearer the edge. An efficient prompt investigation might have revealed this. There is no evidence that a particular safely boot, if worn, would have prevented that slippage. There is no evidence that the sole of the Plaintiff's shoe when compared with that of any of a range of safety boots or footwear put him at risk or at a greater risk to the extent that he contributed to his great misfortune. I am not prepared to speculate unreasonably in this highly speculative area.

57. The Labour Department made some investigation into this accident when it came to their attention but this was in April of the following year. By then there was so much change in the development that they could not derive much benefit, if any, from a site visit.

58. I note that engineers were instructed on behalf of the Plaintiff and of the 1st Defendant, their reports being included as a separate bundle in the papers before me. Both provided their views on safety at work. There was no expert evidence in either report. Both sought to fulfil a judge's fact finding function. Neither report would have been admissible. There was no sensible purpose in obtaining such reports. Wisely no effort was made by any party to adduce them.

Conclusion

59. The Plaintiff succeeds fully against the first Defendant, and is entitled to judgment against it for damages to be assessed, with costs.

60. The second Defendant is entitled to judgment, with costs against the first Defendant who blamed the second Defendant from the outset in its defence. None of those allegations ever got on its feet.

61. It seems that an early resolution of the amount of the Plaintiff's claim in this action will be facilitated by a prompt establishment of the regimen that he needs. At the very least there should be, if there has not already been, an interim payment to provide the essential comforts for this Plaintiff. It is nearly four years since the accident and he is now about 41 years of age and unemployable.