MAHMOOD, NAZIR v. CHIN WAI ON and PUN WAI MING t/a KENZ ENGINEERING CO AND OTHERS

HCPI 741/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 741 OF 2006

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J U D G M E N T

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1.  This is an action in the Personal Injuries list.  The plaintiff claims to have suffered a permanent disability in his lower back when, on 26 July 2004, he was involved in an accident as part of the workforce engaged in building a bridge on a new stretch of highway in the New Territories.  The defendants he is suing are the principal contractor and sub-contractors including his employer.  His allegations are that the accident was caused by the negligence and breach of statutory duty and common law duty of care owed him by the defendants or any of them, and breach of his contract of employment with the 1^st defendant.

2.  The plaintiff’s prospects of success on liability depend on whether I am able to believe his version of events, for although he was in a gang of fellow workers at the time, he is the only eye-witness called by either side.  The defendants are putting him to proof; that said, if I come to be satisfied the plaintiff’s account is truthful and accurate, they will jointly accept liability with no contributory negligence.  I was told as such by Ms Lau who represented all the defendants at trial.

3.  The issue of quantum of damages, if it comes to that, is much more controversial, with the parties singularly at odds as to the severity of the injury.  Particularly compelling is that the two experts engaged, orthopaedic surgeons both experienced and highly respected in Hong Kong, are some distance apart on whether the trauma the plaintiff says caused his injury could have resulted in the chronic pain and permanent disability he now complains of.

4.  What emerges from this is that research into the cause and effect of lower back injury is still developing, with two competing schools of thought for me to have to deal with.

HISTORY

5.  First the personal background of the plaintiff, Mr Mahmood.  He was born in Pakistan in December 1978 which made him 25 at the time of the accident and 29 now.  He was educated in Pakistan, leaving school at the age of 18 in 1996.  The following year he came to Hong Kong where he has lived ever since.  He was then fluent in Urdu and Punjabi, with a smattering of English.  Since then his English has improved and he can speak a little Cantonese.

6.  One could I think describe his build as strapping, certainly by local standards, for he is 5 feet 11 inches tall, and at least at the time of the accident weighed 84 kgs.  He has put on a bit of weight as a result of inactivity since the accident.

7.  As far as his work history is concerned; he describes his first position as office boy in an employment agency, which provided labour, mostly Pakistani and Nepalese, for construction projects.  That lasted for a few months.  Then there was a gap of a few months, until in 1999 he began to work as a casual construction site worker.  This generally was spasmodic with significant periods of time when he was unemployed, with gaps of perhaps 2 to 3 months between construction sites, this during the period from 1999 to 2004.  The sort of work he was required to do varied according to needs, but included carrying heavy loads such as bricks, bags of cement, scaffolding and such other materials used in construction. But prior to the working day which was one before the date of the accident, this did not include lifting and carrying reinforcing iron bars.

THE ACCIDENT — THE PLAINTIFF’S ACCOUNT

8.  Mr Mahmood came to be employed as a casual labourer by the 1^st defendant Kenz Engineering Company working on the building of a bridge in Tsuen Wan.  The daily wage was $400, and the monthly total would have depended on the number of days in the month worked, and the amount of overtime available, which was paid at 1½ times the hourly rate.  He was told they would be expected to work every other Saturday with Sundays off; thus if there was work every available day, for 24 or 25 days per month.  His first day of work was on 24 July 2004.  That was a Saturday.

9.  Mr Mahmood was put into a gang of five workers which included another Pakistani called Faisal and three local workers.  Part of their labours included manhandling very heavy 50mm steel reinforcing bars in various lengths up to 12 metres, weighing up to 185 kgs.  These were used to reinforce the concrete caissons being constructed to carry the bridge that was being built.  The bars having been delivered to the site by heavy duty lorries and laid out on 10" pipes, the task of the gang of five was to rearrange them into groups of four according to their length, which they then tied together using wire ties, ready thus to be craned into an upright position where the pouring of the concrete would take place.

10.  Prior to joining this workforce Mr Mahmood had undertaken limited vocational training, sufficient to earn for him what is known as the Green Card, for general safety.  But on this particular site there was no training for the specific tasks to be done, including the lifting and carrying of the steel bars.

11.  The work on the Saturday proceeded uneventfully; indeed the gang worked a full day and then some five hours overtime.  The next working day, the Monday, was when it all went wrong.

12.  They began at 8 a.m.  They were scheduled to work until noon, the start of the lunch break.

13.  As on the previous workday, they were directed to lift and carry the bars into groups of four and tie them up.  But instead of all sharing the lifting so that effectively each man bore one fifth of the weight of each bar, in fact for much of the time the labour was divided so that three men did the lifting and carrying, whilst the remaining two did the tying into bundles of four.  Mr Mahmood and his fellow Pakistani were on the bars with one of the local men, spaced evenly along the length of the bar.  They lifted in unison on the count of three or similar.

14.  Then there was the accident.  They were set to lift and carry a bar of 10 metres in length; so about 154 kgs in weight.  Mr Mahmood was at one end, the local worker was at the other, and Faisal was in the middle.  They had to move it only about a metre.  They lifted together and the bar rose by about a foot.  Then Mr Mahmood saw Faisal let go of the bar; later he told him it slipped out of his hands.  The additional weight at his end caused him to let go and drop the bar, but not before he felt severe pain and heard the sound of something breaking.  Unable to continue to work, he lay down and called for an ambulance.

15.  The ambulance arrived 30 minutes later.  Mr Mahmood, prone throughout, was placed on a stretcher and driven to hospital.

16.  I mention here that photographs taken at the time show the bars of various lengths laying across pipes, ready to be sorted and tied, and some examples of bundles of bars tied together ready to be craned into position.  Mr Mahmood is also depicted lying on his back, appearing to be in pain, attended by three ambulance men.

EYE-WITNESSES NOT CALLED

17.  A prospective witness for the plaintiff’s case was the Pakistani Faisal, who in anticipation made a witness statement.  However in the event he did not come to give evidence.  The case overran, taking ten days instead of the appointed four, spanning two months.  When the day fixed for Faisal’s evidence came to be rescheduled, he said that if he took any more time off to come to court he would lose his job.  In the event Mr Mahmood chose not to subpoena him or otherwise force the issue; thus there was no account before me from Faisal.

18.  Two further accounts were brought to my attention. 

19.  Two of the local labourers who were in the gang of five called Leung Ying Wo and Yiu Yat Kwan were called in by Barbican to make a statement and each did so.  However it does not seem that efforts were made to maintain contact so that by the time the proceedings were underway they had disappeared.  One of them saw the man they were working with appear to be in some pain and sit and then lie down.  The other said he saw the man walking near the bars then fall sideways.  It seemed he tripped.  Then he saw him sit and then lie on the ground.

20.  Neither of these accounts made reference to there being only three men involved in the manhandling of the bars, or that one of them had lost his grip during the manoeuvring.

THE REMAINING EVIDENCE OF THE ACCIDENT

21.  This came from Kan Wai On, who was, at the material time in the employ of the 2^nd defendant Falcon Engineering as a foreman. At that time Falcon Engineering had a sub-contract from the 3^rd defendant Barbican Construction to carry out building works at the site whereat Mr Mahmood apparently suffered his accident.

22.  There was a need for additional labour to undertake manual transportation of materials and so it was that through the 1^st defendant Mr Mahmood came to be employed and on site.

23.  Mr Kan confirmed his account whereby the gang of five were required to manhandle the reinforcing bars into groups of four to be tied together, using wires and spreaders.

24.  Mr Kan said he was not present and thus had no direct knowledge of what happened that gave rise to Mr Mahmood becoming hurt.  He came to learn of the accident but was not told that it was caused by one of the labourers losing his grip during the course of a lifting manoeuvre. 

25.  He did say that Mr Mahmood had received no training or formal instruction before he began working for the company, though that was scheduled to take place shortly thereafter.

LIABILITY

26.  Ms Lau told me that the concession on liability if I find as a fact that Mr Mahmood’s account is the truth of the matter derives from the men being permitted to divide the workforce into three and two, for given the size and weight of the bars there should have been five at all times assigned to lifting them and moving them.

27.  But she invited me to find against Mr Mahmood as to how it all happened or at least that he has failed to discharge the burden of proof.

28.  She submitted there were unsatisfactory inconsistencies in what he said or did not say post the accident; for instance, that he did not attempt to give an account to the foreman before he was taken away by ambulance, citing language difficulties, though Faisal was competent in Cantonese.  Further, in his statement he said having dropped the bar he was in extreme pain and lay down.  Then in the witness box when shown the photographs I have spoken of which revealed that he was lying a few metres away from the bars that were being shifted, he had to admit that he had taken a few steps before lying down.  And she pointed to the two statements of Leung and Yiu, wherein neither made reference to a three-man lifting team or that a bar was dropped in the manner that Mr Mahmood had described.

DISCUSSION

29.  It is of course always useful to have corroboration by an eye-witness independent of the victim in a personal injury case.  It is unfortunate that Faisal was not available and that contact was lost with Leung and Yiu.

30.  That said, the scenario of men allocated to the task of moving and tying these large, very heavy bars is incontrovertible, and the photographs graphically illustrate the size of the bars and the injured and in pain Mr Mahmood.  And there is no direct evidence of how otherwise Mr Mahmood came to be hurt.  The statements of Leung and Yiu are of little value given that they could not be found to make witness statements and be called for testing in cross-examination what they might have said.

31.  Mr Mahmood has ever since been consistent in telling and retelling how it happened and if he took a few steps before lying down I do not find that discredits his original account wherein he missed that out.

32.  In the circumstances I am satisfied that his account of what happened is truthful; that is enough to bring into play Ms Lau’s concession, if I may say both helpfully and appropriately given.

33.  Thus on the issue of liability, all three defendants are liable.

POST THE ACCIDENT

34.  Mr Mahmood was taken by ambulance to Yan Chai Hospital complaining of acute back pain, having heard a cracking sound as if something had broken at his back.  X-rays revealed no fracture however or anything that was remarkable.  But in view of the severe pain complained of, he was admitted to the orthopaedic ward for further management.  The medical officer in charge subsequently reported:

“The abovenamed patient was admitted to the Department of Orthopaedics & Traumatology on 26.7.2004.  He complained of sudden onset of lower back pain while lifting heavy object on 26.7.2004 while on duty. Physical examination showed lower back tenderness. Straight-leg-raising test showed no tension sign.  There was no neurovascular deficit.  XR lumbo sacral spine revealed no abnormality.  He was treated with physiotherapy and analgesic and discharged on 29.7.2004.”

35.  Thereafter he was referred to the hospital’s Physiotherapy Department.

36.  In those early days Mr Mahmood said that he was unable to walk without the use of a walking frame.  Thereafter for a about a month he needed as an aid a walking stick. 

37.  He received a course of physiotherapy treatment lasting from 19 August to 17 September which included interferential therapy, hot pack, back exercises and relaxation training.  Following that the Department Manager reported:

“Mr. Mahmood Nazir was referred to the Physiotherapy Department of Yan Chai Hospital by the Orthopaedics and Traumatology Department of Yan Chai Hospital for physiotherapy treatment on 29/7/04.  His diagnosis was sprain back.

Mr Nazir’s first appointment was 19/8/04.  On assessment, there was limitation in trunk flexion and extension which was about 1/3 of full range of motion.  Muscles on either side of the spine were tense.  But there was no neurological sign.

Physiotherapy in the form of interferential therapy, back exercises and relaxation training were given to relieve his pain and to improve the mobility of his trunk.

There has been some improvement in his pain as he was able to walk without the help of a stick, but the range of motion has remained similar.”

38.  There was a second course which ran from 29 December 2004 to 27 October 2005. 

39.  Mr Mahmood’s own assessment of the benefits of that treatment was that his condition had improved by up to 40%.

40.  But at this time he complained of constant mild pain with bouts of very bad pain on occasion; for instance, when he rose in the morning or after walking or if required to bend from the waist.

41.  He was unable to lift heavy weights, was restricted in movements and needed to take constantly medication to reduce the pain.  Unable to work, he was given sick leave from the date of the accident until 8 September 2006, a total of 2 years and 1½ months.

42.  From the witness box Mr Mahmood deposed that these symptoms have more or less persisted ever since.  He cannot carry anything weighing any more than 15 kgs without feeling pain; likewise, the act of bending forward produces the same ill effect.

43.  Since the cessation of his sick leave certificates, Mr Mahmood has had only limited success in finding employment.  He has undertaken a certain amount of freelance translating, in the main helping fellow countrymen whose English and/or Cantonese is limited, in visits to doctors or lawyers and the like.

44.  Construction site work then and ever since has been beyond him because of his inability to handle weights.  Doctors who have attended him at the Orthopaedics Clinic at Yan Chai Hospital in follow-ups have variously recorded that such manual activity should be permanently avoided.

45.  Whilst non-manual jobs are said to be within his capabilities, he has difficulty in getting such employment because of his lack of fluency in Cantonese.

46.  And one job as a security guard proved to be short lived and traumatic.

47.  Mr Mahmood took employment with a company called Yeoman Guards Company Limited, beginning work on 11 September 2007.  This was for the night shift, patrolling a construction site at Shatin.  At first the work was uneventful.  Then on 25 November he and a fellow guard, also a Pakistani, were set upon by seven men who in the small hours stormed their post, beat them up, tied them up and fled with $2,500 in cash.  Mr Mahmood spent two days in hospital and was on sick leave for two weeks.  But he did not return to work for Yeoman, having been traumatised by the attack.

SURVEILLANCE 

48.  As is commonly done these days, those representing the defendants called upon the services of private investigators to carry out a surveillance on Mr Mahmood, such that on various days in February, March and April 2007 he was caught on video going about various activities.  The video and a written report were produced.  The video, lasting for about 11 minutes, was played several times in court.

49.  The first footage was on 13 February 2007, being the day Mr Mahmood was scheduled to meet and be examined by Dr Patrick Wong, the orthopaedic surgeon appointed by the defence lawyers to examine him and report on his injuries, as I shall come to.  He was seen to arrive at the clinic at 15:50 hours and leave about 2½ hours later, thence to travel by MTR.  His mobility was normal; at one stage he ran for a train. 

50.  There were two uneventful attempts at surveillance in March, then another on 13 April.  Mr Mahmood was filmed arriving at Yan Chai Hospital and walking with easy gait to the registration counter.  He dropped a piece of paper and bent down easily and freely to retrieve it.  Leaving the hospital he walked on Tak Wah Street, squatting outside a shop to examine at ground level goods displayed in boxes.  He squatted for some time in a normal way, showing no discomfort.  When he rose he did so freely.  He returned to the hospital, left it, took a bus and eventually found his way home.

51.  That was the extent of the surveillance. 

52.  The investigator commented about what is self-evident from the video; Mr Mahmood walked with a normal gait.  There was no evidence of stiffness or other awkwardness; no signs of back pain.  The squatting and bending to retrieve a dropped item were undertaken as if by a person with a normal range of movements and flexibility. 

THE ORTHOPEDIC REPORTS AND EVIDENCE

53.  A great amount of time and energy was engaged pre-trial and then during the trial as the two orthopaedic surgeons — Dr Li Wing Kin for the plaintiff and Dr Patrick Wong Kwok Shing for the defendant — clashed on the severity of Mr Mahmood’s injures and the extent to which they have permanently disabled him.

54.  Both examined and spoke to the patient, aided by his medical records. 

55.  Dr Li saw him at his clinic in January 2007 and Dr Wong did likewise during the following month.  Dr Li reported in February and March, and Dr Wong did so in March.

56.  Both doctors were given the other’s report to consider and comment on and this resulted in further reports; three more by Dr Li and two by Dr Wong.  So there was a wealth of written material, particularly as both chose to support their opinions with literature; articles from medical journals and extracts from texts written on the topic of lower back injuries and the like.

57.  If this were not enough, both doctors were held captive in the witness box for a total of five days, which I suppose demonstrates the efforts of both counsel to gain concessions from their opponent’s expert as to just how bad (or mild) the injury was, and the extent if any to which it was and remains permanently disabling. 

58.  I think it fair to say that there was very little headway achieved, with both holding firm to the opinions originally formulated.

59.  It would I believe be counter-productive to record in any detail the first reports and all the supplementary ones with accompanying data and then the evidence that emerged in the five days of the trial dedicated to this part of the case.  Suffice to say I have read the reports and the literature attached, and listened to and have read and re-read my notes of what they said from the witness box.  Further, I have been greatly assisted by full summaries of both counsel in their closing addresses.

DISCUSSION

60.  The starting point for the doctors was the account given to them by Mr Mahmood of how he came to be hurt, followed by an examination of him and of the contemporaneous notes and reports retrieved from Yan Chai Hospital’s various departments.

61.  Both doctors were in general agreement that the original diagnosis of a back sprain injury, that is involving only soft tissues, was compatible with the examination including x-rays taken immediately following the accident.

62.  Both agree that two tests carried out on Mr Mahmood resulted in complaints of pain which was a positive response; that is, the complaints could not be justified from the pathological findings.

63.  Both agree that Mr Mahmood’s ongoing complaints of severe and constant pain, aggravated at certain times or when he undertook certain forms of activity, still suffered so long after the accident, could not be explained by such an injury.

64.  It was that which prompted Dr Li to order a MRI scan, and it was that which led to a parting of their ways.

65.  Dr Li noted “a slight left posterior protrusion” at the L5/S1 disc and a mild difference in signal intensity compared with the remaining lumbar discs.

66.  Given the severity of the pain Mr Mahmmod claims to have suffered as from the outset and his apparent difficulty in walking for at least a month after that, coupled with the persistent pain in the lower back that was ongoing, he concluded that Mr Mahmood had as a result of the accident suffered an acute disc rupture, which he said gave rise to and explained the presence of the protrusion he had spotted in the MRI film.

67.  This having not been noted at the time of the accident or thereafter warranted treatment not so far considered, in the hope that there would at least be an improvement in Mr Mahmood’s impaired condition.

68.  In the meantime, he did not anticipate full recovery.  He said he should avoid attempting heavy manual work and otherwise lifting and carrying heavy loads.  Thus the sort of work he had been undertaking prior to the accident was not available to him, but he should be able to undertake manual work not categorized as heavy duty.

69.  He said that this opinion was based on his belief that following an accident which gives rise to a prolapsed disc, the disc is weakened permanently, which thus undermines the ability of the lumbar spine to withstand pressure thereafter.

70.  He thought the sick leave given to Mr Mahmood of a bit more than two years was appropriate.

71.  Dr Wong took no issue with Dr Li’s election to call for a MRI scan, but it is fair to say they were poles apart when it came to analyzing the cause and effect of what the film revealed.

72.  He regarded what he said was a slight protrusion as being the beginnings of degenerative disc disease which is commonly found in the community at large, and particularly so where a back is subjected to heavy duty such as the physical labours of a construction site worker.

73.  Dr Wong went on to say that disc ruptures do not occur as a result of a single loading event unless there is also associated a massive bony injury to the spine.  And Mr Mahmood suffered no such trauma.

74.  He noted that there was little objective sign of physical impairment, no neurological deficit, and he expected that there would be only mild residual low back pain from time to time.

75.  He said that Mr Mahmood should be able to return to his pre-accident job, save that he should adopt a proper posture when lifting heavy objects.  He thought that the sick leave granted was excessive; that six months would have been enough.  In his opinion (and I have already made mention of this) Mr Mahmood’s persistent back pain was essentially of inorganic origin.

Discussion

76.  Having considered all of the material now before me I have to say that I prefer Dr Wong’s conclusions that Mr Mahmood suffered a soft tissue sprain as a result of the sudden and unexpected burden of extra weight put upon his back.

77.  I accept that the sprain was serious and that it incapacitated Mr Mahmood for a few weeks.  But there would have to have been a gradual improvement as the healing process proceeded with the passage of time, so that after a while the pain would have become mild and spasmodic, perhaps more particularly evident after heavy or prolonged exertion.  There was no rupture of the disc at L5/S1.  The protrusion is the result of disc degeneration, exacerbated by the heavy duty work of manual labouring.

78.  I reach this conclusion because I accept Dr Wong’s diagnoses and prognoses, aided by the literature he produced. 

79.  Of particular assistance was an article published in volume 20 being the November 2005 issue of “The Back Letter” which summarized the studies and findings of various leading authorities on orthopaedics, including the world renowned Dr Gordon Waddell.  Dr Waddell’s article “The Back Pain Revolution”, 2^nd edition, provided an up-to-date balanced and thus useful point of view.

80.  Apart from the lack of pathological explanation of anything more serious, it is apparent that Mr Mahmood was and remains capable of exaggerating his symptoms of pain and disability for self-interest.

81.  For instance, after the accident he said he heard a cracking sound as if something had broken at his back, when there was no fracture.  The tests he was asked to undertake by both doctors caused pain not consistent with the pathology, thus consistent with feigning. 

82.  The video was of a man who could bend and reach down to the ground instinctively and spontaneously.  There was no holding of the back, or the need for support.  Likewise, he squatted down, remained down and returned to an upright position smoothly and apparently painlessly.  And he walked with a natural and relaxed gait and posture, consistent with that of a fit and active young man.

83.  At the trial Mr Mahmood spent some time in the witness box, without showing any signs by stiffness or shifting in his seat that he was suffering from a pain or even discomfort that one sees typically in those suffering from chronic, persistent back pain, when required to spend a lot of time sitting without a break.

84.  The conclusion I draw is that of Dr Wong; that Mr Mahmood having sustained a serious soft tissue back sprain some time ago by now has all but fully recovered, save for residual back pain that might re-occur after heavy or prolonged lifting or carrying of heavy weights.

85.  He is young and of strong build, and capable of returning to construction site labouring, save that he must heed instructions on how to lift and carry heavy materials so as to minimize a recurrence. Realistically, he should not run before he can walk.  He should undertake supervised progressive exercise to recondition himself towards the sort of labours he is expected to perform.  This should also result in loss of the weight he has put on because of the sedentary life he has led for the last four years.

86.  Dr S Y Chan in his paper “Low Back Pain” (produced as exhibit D1) sets out the sort of programme that should be beneficial in three paragraphs beginning at the foot of page 8.

87.  With this litigation behind him I trust that he will make every effort to rejoin the workforce and a normal life.

QUANTUM

PSLA

88.  Mr Mahmood claims $350,000; Mr Wright submitted the circumstances and extent of the injury were similar to that suffered by the claimant in Lai Kam Wah v Wing & Kwong Co. Ltd, HCPI 1131 of 2002, who received $350,000 under this head.

89.  But that is too high, given my finding on the extent and severity of the injury in this case.

90.  Miss Lau proposed $50,000 or at least no more than $150,000.

91.  She said that the injury was less severe than that suffered by the plaintiff in Mahmood Tariq v Kinway Engineering Ltd, HCPI 149/2006 which as it happened I tried.  I awarded under this head $200,000.

92.  As I find, the injuries are similar.  I award under this head $200,000.

Loss of Earnings

Pre-Trial

93.  I fix the appropriate length of sick leave to be six months, with another month for him to have found his next employment.  He was on $400 per day, but with overtime available.  I accept as a fair estimate that might have been a further 25 hours at 1.5 times the hourly rate.  That would have brought his average monthly income to $11,650.

94.  Thus pre-trial his loss to 26 July 2005 is calculated at:

7 months x $11,650	$81,550
MPF — 5% x $81,550	4,077
	$85,627

Future Loss

There is none as I find.

Loss of Earning Capacity

There is none.

Medical and Travel Expenses

The defendants concede all that is claimed; thus — $6,340.

Interest

On the PSLA this shall be 2% from the issue of writ to this date; thus —

2% x $200,000 x 2 = $8,000

On the special damages this shall be half the judgment rate from the accident to this date; thus — 4.2% x $6,340 x 49 ÷ 12 = $1,087

Employee’s Compensation

Mr Mahmood has been paid $192,134 which comes off the total.

Summary

PSLA	$200,000
Interest thereon	8,000
Pre-trial loss of earnings	85,627
Special damages	6,340
Interest thereon	1,087
	301,054
Less Employees’ Compensation	192,134
	108,920

JUDGMENT

95.  There will be judgment in favour of the plaintiff in the sum of $108,920.

96.  The costs order, which as usual with judgments handed down will be nisi, is influenced by the fact that my last day on the Bench before retirement is to be 29 August 2008.

97.  As the order will likely be determined by the amount (if any) paid into court by the defendants, and as I have no idea what, if any, has been paid into court, the nisi order I made shall be the neutral one of no order as to costs; I suspect that this in the event will not find favour with one side or the other; thus I make the following directions:

  An application to vary the costs order nisi shall be filed and served by 4 p.m. on Wednesday 27 August 2008 with the parties to be ready to argue the same on or by 29 August 2008.

98.  Of course, the parties can file a consent summons on or by 27 August if they can agree a variation.

99.  If the above steps are not taken by due date and time the order nisi shall become absolute.

100.  For the above reasons the costs order nisi is no order as to costs, save that Mr Mahmood’s own costs are taxed under Legal Aid Regulations.