CHAN CHAN PING v. COLLIERS JARDINE MANAGEMENT LTD

DCPI45/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 45 OF 2000

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J U D G M E N T

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Background

1. The plaintiff has been employed by the defendant as a lift attendant since 1995. He is still so employed. On 26 July 1997, he was transferred to Kwai Shun Industrial Building to operate a goods lift there. On 11 June 1998, or a few days before that day, he was assigned to operate lift No. 8.

The accident

2. On 11 June 1998, at about 9:10 am, the plaintiff was operating lift No. 8. After the lift had been emptied on the ground floor, he looked out of the lift to see if there were goods waiting to be delivered. Whilst he was looking out, the door suddenly closed from both sides. It was later discovered that this was because someone had pressed a button at the 4th floor calling for this lift. Whilst the doors were approaching, the plaintiff withdrew quickly into the lift carriage, but he failed to completely withdraw himself and his left foot was trapped by the doors. The lift then went up to the 4th floor with his left foot trapped between the doors. The base of the lift doors were damaged and had become a sharp edge. The plaintiff said in his witness statement that his foot was cut by the sharp edge when it was trapped. The medical reports say that he had suffered a left foot crushed injury.

Contributory negligence

3. The plaintiff thus sued the defendant for negligence and breach of the employer's duty to provide a safe system of work. The defendant accepted liability but contended that the plaintiff was guilty of contributory negligence on two grounds, (i) the plaintiff had failed to report to the defendant that the bottom of the lift doors were damaged and (ii) the plaintiff did not push the safety edges installed on the doors to reverse the doors.

4. On the first ground, there was a dispute on whether the plaintiff was injured on the first day when he was assigned to operate lift No. 8 or whether it was his fourth day. In his witness statement dated 16 October 2000, he said he was assigned to this lift in early June and the accident occurred on 11 June. In an accident report prepared by the Labour Department, the investigator reported that he had been told by the plaintiff on the date of the accident that the plaintiff had been assigned to this lift four days before the accident. However, in the plaintiff's supplemental witness statement dated 17 October 2002 and in his oral evidence, he said that the accident happened on the very day when he was first assigned to operate that lift. I am inclined to accept what he said on earlier occasions as his memory should have been better then. The defendant thus said that since the plaintiff had operated this lift for four days before the accident and was aware of the damage to the doors, he should have reported the damage to the defendant before the accident happened. His failure to report thus contributed to the happening of the accident.

5. I, however, do not think this was an issue that needed resolution. Whether the accident happened on the first day or the fifth day after the plaintiff had been assigned to operate that lift, the plaintiff has confirmed in his evidence that he was fully aware of the poor conditions of all the goods lifts since the first day he was transferred to this building in July 1997. When he was assigned to work that lift, he already had knowledge of the damage. If he should report the damage to the defendant after becoming aware of it, he should have done so before he was assigned to work that lift. Even if it should be assumed that he should only care about the particular lift under his charge and not all other lifts in the building, he should have made a report of the damage as soon as he was assigned to work that lift as he already had knowledge of the damage before he got this assignment.

6. The defendant further said that it was part of the plaintiff's duties as a lift attendant to report to the defendant the existence of such damage. His failure to report was also a breach of his duties to the defendant. There was however no evidence that the plaintiff had been advised of such duties by any one of the defendant or that he had been supplied with a copy of the relevant manual by the defendant. The plaintiff also argued that it was not part of his duties to report such damage to the defendant as he was only obliged to make a report when the lift under his charge failed to function at all. He regarded the damage to the lift doors as a minor problem that was not within the scope of his duties to report.

7. However, even if he should be a regular user of the lifts and not as a lift attendant, I am of the view that he should have reported such damage to the building manager for repair. This would have been for his own protection as well as for protection of others. Common sense dictates that as a lift attendant, he should be under a duty to report such damage to the defendant for repair. This duty should at least extend to the lift under his charge. The duty would ensure the safety of those travelling in his lift. I do not think he needed to be positively advised that he had such a duty.

8. Nevertheless, his failure to report the damage did not mean that he had contributed to the happening of the accident. The photographs produced in the accident report prepared by the Labour Department show that the damaged parts of the doors were not latent or hidden. They were obvious to anyone who cared to inspect them. The accident report, which has been referred to by the plaintiff as well as the defendant, also reported a statement by one Tam Wai-cheung, the assistant building supervisor of the defendant, that he had conducted daily inspection though he said in the same breath that he did not notice that the door of lift No. 8 was damaged. As the parts of the doors of lift No. 8 that were damaged were so obvious, I cannot accept that Tam did not notice them despite his daily inspection. I therefore hold that the existence of the damage to the lower parts of the doors of this lift had been known to the defendant for a long time but that it did not find it necessary to have them repaired. There was also evidence in the accident report prepared by the Labour Department that another lift attendant was aware of such damage from April to May 1998. In line with this finding, I also find that the failure on the plaintiff's part to report the damage to the defendant had not contributed to the happening of the accident or to its severity. Any report by the plaintiff would not have made a difference. The damaged parts would have remained and the plaintiff would still have to operate this lift.

9. The second issue of contributory negligence was the plaintiff's failure to push the safety edges to reverse the doors. There was no express averment of this ground in the Defence. However, this attack could go under the pleaded ground of failing to take reasonable care for the plaintiff's own safety while working for the defendant in the circumstances.

10. Miss Molloy for the defendant also took the point in her final submissions that the plaintiff had failed to pay proper or adequate attention in the circumstances by failing to withdraw his body at all or in good time from the doors. This attack could also go under the pleaded ground of failing to take reasonable care for the plaintiff's own safety as aforesaid.

11. The plaintiff's answer was that because someone had pressed the lift button on the 4th floor which caused the doors to close swiftly. The plaintiff's immediate response was to withdraw himself into the lift carriage. Unfortunately his left foot was caught between the doors. He was not in complete control of the lift as the lift answered the call on the 4th floor and moved without any control from him. He was already aged 61 at that time and presumably a bit slow in response to the closing of the doors. He also did not expect that his left foot would be caught. Furthermore, if the bottom parts of the doors were not broken, the doors might not have closed as the safety edges at the bottom might have hit the left foot and then caused the doors to retreat.

12. The plaintiff relied on the case of Casewell v Powell Deffryn Associated Colliers Limited [1940] AC 152 at 178 where Lord Wright said,

"What is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his preoccupation in what he is actually doing at the cost perhaps of some attention to his safety."

13. The plaintiff also relied on Sun Wan Company v Ng Kam [1988] HKC 358 in which the Court of Appeal cited the speech of Earl Jowitt in General Cleaning Contractors Limited v Christmas [1953] AC 180 where at page 187 he agreed with what was said by the late Lord Denning in his judgment in the Court of Appeal as follows:

"At the hearing of the appeal it was suggested that the accident might have been avoided if the man had put in a chock to prevent the bottom sash coming right down as it did. This was, in effect, a suggestion of contributory negligence. This was negatived by the judge and I agree with him. You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way which the employees expected him to do it, and, if they had taken proper safeguards, the accident would not have happened."

14. However, the defendant's simple complaint was that the plaintiff could have given the safety edges a push and that would have stopped the approach of the doors. The fact that the lift doors would have retreated upon the push of the safety edges was a thing known to almost all those who have travelled in lifts, not to mention a lift attendant. The defendant was not suggesting that the plaintiff had adopted any incorrect or dangerous procedure in discharging his duties. The accident also did not happen in the course of some repetitive or monotonous factory process. It happened because the plaintiff failed to withdraw his left foot in time and did not push the safety edge to reverse the doors.

15. It was possible that he thought that he had already withdrawn his left foot from the doorway and therefore he did not choose to reverse the doors by pushing the edges. If he laboured under such impression, he was nonetheless negligent. If he had no misapprehension as to where his left foot was, he would likewise be negligent in not pushing the edges. In the premises, I find that the plaintiff should bear 15% of the responsibility for the happening of the accident.

Injuries

16. As a result of the accident, the plaintiff suffered a crushed injury to his left foot. He produced two medical reports. One report was prepared by Dr Benny Y N Tse of the Department of Orthopaedics and Traumatology of Princess Margaret Hospital and dated 1 June 1999. The other was prepared by Dr David H F Cheng, a specialist in Orthopaedics and Traumatology and dated 23 March 2000.

17. Dr Tse's report refers to the results of physical examination and examination by X-ray which showed that the plaintiff had suffered open fracture of the proximal and distal phalanx as well as dislocation of the inter-phalangeal joint of the left big toe. Upon admission into hospital, an emergency operation of wound debridement and K-wire fixation was performed on him. There was wound infection which necessitated further wound debridement on 24 and 27 June 1998. Split-skin graft was done on 3 July 1998 when the wound infection was under control. There were thus four operations with two of which for debridement only. He was discharged on 14 July 1998. On 26 June 1998, he paid $350 deposit to Princess Margaret Hospital for the provision of a physio (elbow crutch). When he was discharged, the hospital did not provide him with a wheelchair. Presumably he had to rely on the crutch.

18. After discharge from the Princess Margaret Hospital, the plaintiff continued with follow up sessions at the out-patient clinic of the hospital. There were raw areas over the previous wound but they were healed with daily dressing. He was last seen at the out-patient clinic of the hospital on 18 November 1998 when it was noted that he still suffered from numbness and stiffness of the left big toe. On 1 March 1999, the Medical Assessment Board assessed his permanent disability at 4%.

19. Dr Cheng saw the plaintiff on 14 March 2000. His report recounted the fact that the plaintiff had received physiotherapy and eventually he was able to walk unaided. He resumed his pre-accident job on 1 December 1998. The report also recorded that the plaintiff had told Dr Cheng that he could not walk after discharge and had to use a wheelchair and then two auxiliary crutches, he had paresthesia of the left foot and occasional pain of the foot at night. He also said that he had to limp on walking and could only walk for about 15 minutes and had to take a rest, he could not stand for more than 20 to 30 minutes, had to hold on to rails when climbing stairs, he had stiffness of his left toes and could not spread them, he also had discomfort over the left thigh, the skin donor area and he also had dizziness.

20. Dr Cheng's examination showed that the plaintiff was of good general health, not pale or anaemic, walked with a slight limp, could stand normally but not on the left foot alone and could squat normally. There was also an unsightly 4 cm scarred area over the first web of the foot covered by skin graft. There was no movement of the metatarso-phalangeal joint or the inter-phalangeal joint of the big toe. These two joints were completely ankylosed in neutral position. The big toe also had diminished sensation. There was also hyperextension of the 2nd and 3rd toes. There was little motion of the toes. Result of radiological examination showed sclerotic margins which suggested part septic arthritis.

21. Dr Cheng commented that the plaintiff had probably suffered a crushed left big toe with open fracture and dislocation of the big toe. He reviewed the treatments received by the plaintiff and opined that sick leave for 6 months was reasonable. When he saw the plaintiff on 14 March 2000, the fractures had united, the dislocation reduced and the wound healed. There was however complete ankylosis of the big toe, a contracture of the wound leading to hyperextension of the 2nd and 3rd toes. There was also residual pain and paresthesia which was likely to be permanent. He further opined that the plaintiff had suffered 8.4% impairment of the whole person and 15.4% loss of earning capacity.

Wheelchair

22. Miss Molloy firstly dealt with the plaintiff's alleged need for a wheelchair. She submitted that the plaintiff's need for a wheelchair for 6 months was an exaggeration. The plaintiff did say that he had used a wheelchair during hospitalisation. After discharge, he rented a wheelchair from a charity. He used crutches when walking along the corridor and going to the toilet. However, when he went for a change of dressing, he went in a wheelchair. Miss Molloy asked me not to believe the plaintiff's evidence. Her grounds were that there was no evidence that Princess Margaret Hospital had issued any wheelchair to the plaintiff, the plaintiff had not produced any receipt for his rental of a wheelchair allegedly from a charity and had not explained this failure whilst he was able to produce receipts for all other expenditures.

23. Furthermore, he resumed work after a lapse of 4 1/2 months from discharge and he walked unaided upon resumption of duty. If he had really used a wheelchair, he would have gradually improved from moving in a wheelchair to walking with crutches and then to independent walking in this 4 1/2 months. As such, he would not have spent a long time on a wheelchair. Her primary submission was of course that the wheelchair story was a complete fabrication.

24. Having considered all the evidence relevant to the need or otherwise of a wheelchair, I find that the plaintiff had not used any wheelchair after his discharge from the hospital. I come to this finding because he never had such need and the hospital did not consider it necessary that he should be provided with such. Furthermore, he was able to produce receipts to support all sorts of expenditure but not for the rental of the wheelchair. Since the wheelchair was allegedly rented from a charity, there should not have been any difficulty for him to obtain a receipt or some sort of written confirmation. In any case, the plaintiff has not made any explanation on why no receipt was produced for this expenditure.

Quantum

PSLA

25. Miss Molloy for the defendant referred me to the cases of Wong Sam Mui, the administratrix of the estate of Tam Wan Loong, deceased v Fan Yiu Sum trading as Fan's Stevedores HCA No. 1817 of 1994 and Leung Chung Ngar Christover v Yeung Man Wai and Anor HCPI No. 63 of 1999. She submitted that Leung Chung Ngar was most analogous to the present case. At the end, she also referred to Ng Wah Chun v Cheng Wing Chun and Others HCPI No. 164 of 2001, a case produced by Mr Mui.

26. In Wong Sam Mui, the victim of the accident had passed away for an unrelated cause before the trial. He used to work as a casual coolie. His right foot was struck and injured by some iron tubes in an accident on 20 September 1984. He was admitted into United Christian Hospital and was later transferred to Queen Elizabeth Hospital. He was further transferred to Kowloon Hospital on 26 September 1984 and discharged on 12 October 1984. He attended follow up out-patient treatment and physiotherapy. He had recovered by July 1985 except that when he walked long distances, he would feel powerless and weak. He was granted sick leave until 22 March 1985. The examination on admission to hospital showed that he had two lacerations of 10 cm and 8 cm on the dorsum of his right foot which was also swollen. X-rays showed undisplaced fractures of the 2nd and 3rd right metatarsal bones. He was assessed by the Employees' Compensation Board to have suffered 2% loss of earning capacity for his 2% residual disability for pain and deformity. Master O'Donnell on 6 March 1995 assessed that the compensation for PSLA was at $50,000. This case is less serious than the plaintiff in the present case.

27. In Leung Chung Ngar, the plaintiff was a hairstylist. He suffered an accident on 6 March 1998. As a result, he had fractures of the metatarsal neck of the 3rd and 4th toes, dislocation of the 5th metatarsal-phalangeal joint all of the left foot. The fractures were treated by close reduction and K-wires. The dislocated joint was reduced. He was hospitalised for 3 days and discharged with crutches. The K-wires were removed about 6 weeks later. He had some prominence of the 4th and 5th metatarsals giving rise to a degree of tenderness on the sole of the left foot and had to wear some cushioning to help alleviate that. For the 4th metatarsal, it was the result of mal-union of fracture. There was no post-traumatic arthritic change. A doctor recommended some physiotherapy as he considered that prolonged standing would give rise to some difficulty for the plaintiff and necessitated a reduction in work capacity. There would also be residual pain on prolonged weight-bearing and the plaintiff needed intermittent rests. Seagroat J was of the view that it was not a serious injury and the plaintiff could cope well. He awarded the plaintiff $200,000 for PSLA. This case is slightly more serious than the present case.

28. In Ng Wah Chun, the plaintiff had an accident on 14 May 1998. X-rays showed that he had suffered comminuted fracture of right calcaneum and a suspected fracture on the 4th lumbar. He opted for conservative treatment. He was discharged from hospital on 23 May 1998. He had residual back pain and right heel pain. He needed to walk with an elbow crutch and had a limping gait. He was assessed to have suffered 11% impairment of the whole person and 15% of loss of earning capacity. Recorder Ronny F H Wong SC opined that there should be $200,000 for PSLA but deducted $50,000 on account of the plaintiff's failure to mitigate his loss by refusing an operation for fusion of the subtalar joint. This case again is slightly more serious than the present one.

29. Mr Mui for the plaintiff has furnished me the following cases for the purpose of assessing the amount for PSLA: Poon On Lan v Chan Shu Choi (HCA No. 6764 of 1981); Lam Kwai Yip v Yuen Yun Kui (HCA No. 12617 of 1994); Ho Sik Tung v Lau Kin Sun (t/a E & J Engineering Company) (HCPI No. 408 of 1999); Yeung Sui Sum v Li Kin Wah (HCA No. 2550 of 1980); Chui Kit v Tong Yiu Kay (HCA No. 7962 of 1982); Ho For Sang v Lau Sun Choi and Anor (HCPI No. 584 of 2001); Ng Wah Chun v Cheng Wing Chung and Others (HCPI No. 164 of 2001); and Lui Sang-lok(?) v Wah Wah Travel Services Limited (HCPI No. 1188 of 1999). In his final submissions, he only relied on Ho For Sang v Lau Sun Choi and Anor (HCPI No. 584 of 2001) and made no mention of the others.

30. In Ho For Sang v Lau Sun Choi, a forklift truck ran over the plaintiff's feet rendering him unconscious. That was on 26 September 1991. Upon hospitalisation, it was found that he had a dislocation of the left 2nd, 3rd and 4th distal inter-phalangeal joints with compound fracture of the left 5th metatarsal bones and fracture of the right 2nd metatarsal bones. He underwent surgery and skin grafting on admission. On 18 October 1991, he was transferred to Caritas Medical Centre for rehabilitation. He stayed there until 21 November 1991. After discharge, he had to use crutches for about a year. He also received follow up treatment and Chinese bonesetter treatment on many occasions. At the hearing on 28 November 2002, the court observed that he still had to rely on a stick to walk and that he walked with a limp dragging more heavily on his left foot as his toes on the left foot could not touch the ground after the accident. He also said at the hearing that he still had ache and numbness on both feet and was unable to stand or walk for more than 30 minutes. He had not worked since the accident as he still suffered from those disabilities.

31. One doctor who examined him on 29 November 1993 reported that he had suffered a crushing injury of his feet causing abnormalities to the bony and soft tissue structure of his forefeet. The doctor assessed his physical disability at 15% and loss of earning capacity at 30%. Another doctor examined him on 28 February 2000 and the result showed that there was no significant improvement in his condition. He still suffered from stiffness of both feet and the disabilities were permanent. The assessment by this doctor of the plaintiff's physical disability and loss of earning capacity was the same as that of the other doctor.

32. Master Levy, after reviewing a number of authorities, concluded that the amount of damages for PSLA should be $460,000 as the injuries came within the "serious injury" category. This case is much more serious than the present case.

33. Having considered the overall circumstances and conditions of the plaintiff and the authorities relied on by the parties, I am of the view that the plaintiff should be given $180,000 as compensation for PSLA.

Loss of future earnings

34. The plaintiff has not made any claim for loss of future earnings in his pleadings, but he included such a claim in the opening submissions. When the defendant took the point that such a claim needed to be pleaded and particularised (Order 18 rule 12(1C) and Butterworths' Hong Kong Personal Injury Service, paragraph 1602) and the plaintiff had neither pleaded it nor furnished evidence in support of it, the plaintiff abandoned this claim.

Loss of earning capacity

35. The plaintiff relied on the medical report of Dr Cheng which said that the plaintiff had a 15.4% of loss of earning capacity and asked for compensation to reflect that loss. The defendant however said that there was no evidence that the plaintiff would be out of his job and hence no evidence that he had incurred any loss of earning capacity. Both the plaintiff and the defendant's witness, one Ms Loo, who was the Compensation Specialist of the defendant's Human Resources Department, were of the opinion that the plaintiff had provided the defendant a satisfactory service since resuming duty after the accident. The defendant's witness also said that she was not aware of any reason for termination of the plaintiff's service and the most senior lift attendant in the defendant's employ was at 75.

36. The defendant further referred me to Chan Wai Tong v Li Ping Sum [1985] HKLR 175 from the Privy Council. Lord Fraser of Tullybelton said at page 183:

"A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The court has to evaluate the present value of that future risk: see Moeliker v Reyrolle & Company Limited [1977] 1 WLR 132, 140 where Browne, L.J. dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant's age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant's earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment. Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant. In the present case there is no evidence at all on these matters. Accordingly their Lordships are of opinion that the sum of $108,000 awarded by the Court of Appeal under this head was unjustified and must be deleted." (emphasis supplied)

37. The defendant also referred to Leung Chung Ngar at page 7 to show that Seagroat J also declined to make such an award in that case as there was no likelihood that the plaintiff there would be out of employment as a hairstylist. I agree with the defendant's submission and do not make any award for loss of earning capacity for the lack of evidence that he would be out of his employment. Furthermore, if he should suffer from any disadvantage in the labour market, it is more likely to be due to his old age (now 64) than to his disability.

Special damages

38. The plaintiff initially claimed $22,000 for psychological consultation. This claim was abandoned at the final submissions.

39. On medical expenses, the defendant initially disagreed with the amount as it took the stance that any medical treatment after resumption of duty on 1 December 1998 was unnecessary. However, the defendant changed its stance at the final submissions and agreed with the medical expenses totalling $3,675.

40. The plaintiff also claimed a sum of $23,874 for tonic food. There is no evidence why he needed such food and he was unable to say what sort of tonic food he had purchased and consumed. His purchases up to 18 December 1998 was at $6,450 and he continued to purchase from 7 March 1999 to 22 September 2000 incurring further sums totalling $17,424. Since there was no evidence on why he needed tonic food and he could not even say what it was that he had consumed, I am only willing to give him $5,000 to reflect the habit of Chinese people in taking tonic food after an accident or a surgery.

41. The defendant also argued against travelling expenses at $5,640. On the pleadings, the defendant's stance was that part of the medical expenses was incurred unnecessarily as there was no need for medical treatment after resumption of duty on 1 December 1998. In line with that stance, the defendant also denied liability for travelling expenses insofar as they were incurred for unnecessary treatments. Since the defendant has changed its stance and agreed to all the medical expenses, it could not argue against the need for travelling for the sake of those treatments. But the defendant argued at final submissions that the plaintiff should not have gone for the treatments by taxi and he should have opted for cheaper modes of public transport.

42. There was however never any pleading that the plaintiff should not have travelled by taxi in seeking medical treatment but should have resorted to cheaper modes of public transport. There was likewise no cross-examination of the plaintiff on why he took taxis for all the journeys for medical treatment. I therefore cannot entertain this argument as the plaintiff was not given any warning about it and had not been given any chance to explain his need.

Total sum

43. The total sum awarded to the plaintiff is thus as follows: $180,000 + $3,675 + $5,000, which gives a total of $188,675. After taking into account of the 15% contributory negligence, the net sum is $160,373.75. And then deducting the ECC award therefrom in the sum of $85,317, the net amount payable is $75,056.75.

Interest

44. The parties agree that I should award interest on the usual basis, namely 2% on the general damages for PSLA from the date of writ to the date of payment and half of the judgment rate for special damages from the date of accident to the date of assessment.

45. The defendant however asked me to disallow interest for a period of about 2 years from 29 January 2001 to 31 December 2002. This point was raised at the stage of final submissions and not before. I was referred to paragraph 6/L/26 of the Hong Kong Civil Procedure 2002 and Prichard v J H Corbden Limited and Anor [1987] All E R 3000 at 307g to j.

46. Prior to 29 January 2001, the plaintiff was on legal aid, but the Legal Aid Certificate was discharged on 29 January 2001. The action then went into dormancy until 31 December 2002 when a Notice of Intention to Proceed was filed by a new firm of solicitors. There was no evidence on why the plaintiff did not engage private legal representation as soon as the Legal Aid Certificate was discharged. I do not know whether he was without funds at that time. I also do not know whether he had spent the following 2 years to save up some money for his private lawyers or that he had to go round to his friends for loans. Since this point was not raised earlier on and the plaintiff was not given any opportunity to deal with it, I am not inclined to entertain the defendant's request.

47. Finally, I make an order of costs nisi that the defendant do pay the plaintiff's costs of this action. I also order a certificate for counsel because both sides appeared by counsel and there were indeed a sufficiently large number of issues that justified the engagement of counsel.