YU KWOK WA v. CHINA TELECOM GLOBAL LTD

DCEC 1849/2016

[2018] HKDC 1571

IN THE DISTRCT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1849 OF 2016

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J U D G M E N T

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1.  This is an employees’ compensation claim. The applicant, Mr. Yu Kwok Wa (“Mr. Yu”) (suing by his next friend, Lee Tsui Shan) suffered an intracerebral haemorrhage during work on 26 August 2014.

2.  The applicant’s case is that the stress of work for the period from around July 2014 to the date of the incident had caused or contributed to the intracerebral haemorrhage.

The applicable law

3.  Section 5 of the Employees’ Compensation Ordinance, Cap. 282 (“ECO”) provides, inter alia, that “...if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay for compensation in accordance with this Ordinance.”

4.  The definition of “accident” is that the meaning should be construed in the popular and ordinary sense and means “mishap or untoward event not expected or designed.” (Fenton v J. Thorley & Co. Ltd [1903] AC 443)

5.  In the landmark decision regarding the extent of what an “accident” could be, Lord Atkin in Fife Coal Co. Ltd v Young [1940] AC 479 stated :

“...(2) It is necessary to emphasize the distinction between “accident” and “injury” which in some cases tend to be confused. No doubt the more usual case of an “accident” is an event happening externally to a man. An explosion occurs in a mine, or a workman falls from a ladder. But it is now established that apart from external accident there may be what no doubt others as well as myself have called internal accident. A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases it is hardly possible to distinguish in time between “accident” and injury; the rupture which is accident is at the same time injury from which follows at once or after a lapse of time death or incapacity. But the distinction between the two must be observed...”

6.   Thus, it became a legal tradition to classify “external” and “internal” accident, the former being a sort of traumatic event, and the latter being a diagnosis of a sudden illness inside the body not visible from the outside. For example, in Yu Po Ching v China State Construction Engineering (Hong Kong) Ltd & Anor DCEC No. 1673 of 2013, a construction worker was running to shelter himself from a rainstorm when he collapsed and died of a heart attack. The court remarked that:

“The respondents suggested that there was no specific event that can be identified as the “accident” happened in the present case. As I have stated above, accident can be extraneous or internal. In my view, having reviewed the entire evidence and the law, the unexpected looked-for mishap or untoward event that happened to the Deceased, (the accident) was the infarction...As supported by medical evidence, the infarction is a contributory cause of the death (injury) of the Deceased.”

7.  This “classic” legal classification seems to define an “external” accident as a traumatic event during work, and an “internal” accident as a medical diagnosis of an unexpected “illness” inside the body during work. In the former, the “accident” as stated in the ordinance would be, for example, a fall from height or a hit by a machine etc., but in the latter, the “accident” would be the unexpected “internal” illness.

8.  However, medical science has advanced by leaps and bounds since 1940. I would think that a modern medical expert may have difficulty in understanding this legal classification.

9.  Modern medical science understands that any disease follows a pathological process as below:

i)   “Origins” or “causes” which might be a process triggered and contributed to by various elements (e.g. trauma, infection, congenital factors, risk factors etc.);

ii)   the onset of the acute disease (which would be a clinical diagnosis made by a doctor e.g. fracture of the femur, pneumonia, heart attack, stroke etc.); and

iii)   the “microscopic” and “macroscopic” consequences or disabilities caused by this disease (e.g. loss of function of limbs or organs, loss of blood, death etc.)

10.  However, in the “classic” legal classification, the law seems to be making a division between an “external accident” in which the physical trauma (paragraph 9(i)) is the “accident”, and an “internal accident” in which the disease (paragraph 9(ii)) itself is the “accident”.

11.  I see a problem in this with modern medical knowledge.

12.  Firstly, from a medical point of view, the classification of “external accident” being something one can see outside the body and an “internal accident” being something happening inside the body is illogical.

13.  For an “external accident”, there will still be an “internal” disease (i.e. paragraph 9(ii) above). For example, if there was a fall, the doctor would still make the diagnosis of, for example, a bone fracture, a tendon tear, an organ rupture etc. Some of these injuries / diseases (e.g. rupture of an organ) may still be “a physiological change not visible from outside the body”. There is no reason why a “rupture of an aneurysm” should the “internal accident” itself but a post-traumatic “rupture of a spleen” should be the “personal injury caused by an external accident”. By the same legal argument, the latter can still be seen as an “internal accident” because when one goes to work, suffering from a “rupture of the spleen” must also be a “mishap or untoward event not expected or designed”.

14.  If so, one might as well get rid of any notion of an “external accident” (like a fall or explosion) and just suggest that any unexpected “internal” illness arising out of employment in the course of employment could be defined as the “accident”.

15.  The legal definition for “internal accidents” may also be problematic. The consequences of the disease (paragraph 9(iii)) now become the “personal injury” (“death or incapacity” as per Lord Atkin above). But of course, even in the case of “external accidents”, the fracture of bones or rupture of internal organs must also have consequences like “death or incapacity”, but in such cases, this is not the “personal injury”, but instead, the actual disease is (i.e. paragraph 9(ii)).

16.  Furthermore, by defining the “internal accident” disease as the actual accident, it seems to be asking the court to ignore the origin or causes of such diseases (paragraph 9(i)). Back in 1940, people may not understand the causes of heart attack or a stroke and presumed that it has to be an accident, or “a mishap or untoward event not expected to designed”.

17.  However, medical science has advanced much since 1940. Doctors nowadays would understand the causes of many “internal accidents” diseases better.

18.  Lord Atkin gave examples of “internal accidents” as a “rupture, an aneurism bursts, the muscular action of the heart fails". However, we now understand that many such diseases are results of long, insidious pathological processes involving, perhaps, “in-born” risks, risks acquired after years of chronic illnesses (e.g. diabetes, hypertension, high cholesterol level), and “bad” lifestyle habits (e.g. alcohol abuse, smoking, physical inactivity) etc., or any combination of such. The person gradually developed a weakness in the wall of a blood vessel in the brain (or a severe narrowing of an artery in the heart, as the case may be). Once there is a certain degree of weakness in the wall (or narrowing of the lumen of the artery), there will be a continual risk of a stroke (or a heart attack), much like a “time bomb”. The stroke (or heart attack) may then happen any time, at work or at rest, with or without any stress or exertion. Of course, if and when this eventually happens, can one really say that this was “a mishap or untoward event not expected or designed”?

19.  Defining an “internal accident” as Lord Atkin did would suggest that the “accident” was the rupture of the blood vessel wall (or blocking of the coronary artery) etc.

20.  As such, it is arguable that one needs not look for another “untoward event” (or “accident”) that caused the rupture of the blood vessel wall. One only need to show that the “rupture of blood vessel wall” was “arising out of and in the cause of the employment”. This was what Lord Atkin appeared to suggest, that the disease only need to occur “while the man is doing his ordinary work”. The judgment of the case of Yu Po Ching appeared to follow this line of argument.

21.  However, as stated above, with modern medical knowledge, we understand that many “internal accidents” are really the results of a chronic pathological process cumulating on the one moment: the moment “the straw finally breaks the camel’s back”.

22.  But the fact that the “final straw” happened during employment would not necessarily mean that one arose out of (or caused by) the other: the human body is a lot more complex than that. This “final straw” could be any one of or any combination of many known and unknown (or even random) events. Of course, for a typical case like a heart attack after some form of physical exertion, an expert may be able to suggest a causal link. But for many other cases, who knows whether it was a particular twist of the body, a deep breath, a slight raise in blood pressure (perhaps because the patient was sitting down rather quickly or because the patient had a stressful thought?), or just one simple heart beat or a combination of any of the above that finally pushed past the “tipping point” to cause the wall of the blood vessel to rupture (or the lumen of the artery to finally block up)? Many things were happening inside the body at any moment and to attempt to seek any medical opinion on what was the “final straw” might be as fruitful as asking a scientist exactly which drop of rain had caused the weakened dam to breach in a rain storm.

23.  Even assuming that an expert would be able to identify this “final straw”, the next problem would be for the court to decide whether this “final straw” arose out of employment (or that the employment contributed to it).

24.  Furthermore, it would be wrong to assume that just because the symptoms of an “internal” disease manifested themselves during the course of employment, the actual disease must therefore occur at the same time. For example, one could imagine that if the haemorrhage in the brain was in form of a slow leak, it would take some time after the actual rupture of the blood vessel wall before the intracranial pressure to rise enough for the symptoms to appear. It is well known by doctors that symptoms of haemorrhage in the brain after a head injury could manifest up to 48 hours after the injury. Under the circumstances, it would have been far too simplistic to assume that if the symptoms happened during work, the disease must also arise from work (or vice versa, that if the symptoms did not appear during work, work would not be a contributing factor). In fact, it would likely be difficult, if not impossible, for any medical expert to pin-point the moment “the wall blood vessel wall rupture” because no one would be performing a brain scan at that precise moment.

25.  The problem with the classification of “internal accident” is compounded by the statutory presumption at section 5(4)(a) of ECO: “an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment…”

26.  Even without this presumption, this issue is not much of a problem in cases of “external accidents”: a fall must necessarily arise out of employment during employment if, for example, the employee has to climb to a height for his work.

27.  However, for the cases of “internal accidents”, our current scientific knowledge would be of no assistance. As stated before, not only that the medical expert might have difficulty identifying the “final straw” as well as the precise time of the “accident”, under some circumstances, the court may then have to decide whether a particular body movement / exertion / stressful thought etc. at that precise time is attributable to employment or not. This clearly an absurd situation and no expert or court should go down this path.

28.  Further, in this situation, the statutory presumption operates to, in a way, reserve the burden of proof so that any “internal accidents” that happened in the course of employment is deemed to have arisen out of employment unless there is evidence to the contrary.

29.  However, as stated above, science (at least at the current stage) may not be able to provide any such evidence.

30.  It is therefore problematic, with modern medical knowledge, to define “internal accident” as the actual disease itself.

31.  Instead of the “classic” legal classification of “external accident” and “internal accident”, a medical expert in modern times may understand better a classification of a “traumatic accident” and a “non-traumatic accident”. The former would be an accident causing physical trauma to the body, e.g. a fall, or a hit by a piece of equipment. The latter would be an unexpected event without any direct physical trauma to the body, e.g. an unexpected exertion of having to run for cover, or witnessing an unexpected stressful event at work.

32.  In other words, this is simply classifying the origins or causes of diseases (paragraph 9(i) above) into “traumatic” and “non-traumatic” events.

33.  Further, in line with modern medical knowledge of the causes of various illnesses, the “personal injury” should always be the medical diagnosis made by a doctor of the “illness” caused by the “accidents” (paragraph 9(ii) above). For a “traumatic” accident, the doctor may diagnose bone fracture, tendon tear, rupture of internal organs etc. For a “non-traumatic” accident, the diagnosis may be a heart attack, a cerebral event, or a psychiatric illness etc.

34.  Of course, in this classification, there needs to be input from medical experts so that the court can understand the pathological process of that particular “personal injury” in question and to see if the cause or causes could be from “a mishap or untoward event not expected or designed” “arising out of and in the cause of the employment”.

35.   This might be the logic behind the decision in Chief Adjudication Officer v Faulds [2000] WLR 1035. In this case, the “personal injury” diagnosed was post-traumatic stress disorder. But the medical diagnosis was based on the pathology of years of exposure. The clinical psychologist in that case opined that, “These symptoms were of several years’ duration having developed insidiously in response to continuous and increasing pressures at work…”. The House of Lord held that there was no identification of an accident in the course of employment which caused the injury, and “even where the claimant who was engaged in a stressful occupation developed a stress-related illness over a long period, it was still necessary to identify an incident or incidents which qualified as the relevant “accident” that had caused the claimant’s injury.”

36.  In the Faulds case, one could argue that it should be the medical evidence on the pathological process that turned the case: the medical evidence was that this particular case of post-traumatic stress disorder (that Faulds suffered from) was not caused by any identifiable unexpected events.

37.  However, I would imagine that, in another case of post-traumatic stress disorder, the medical expert might find that the injury had developed after witnessing one or several identifiable stressful events during the course of employment. I could not see why the court should not find for the applicant under those circumstances.

38.  Whilst one may suggest a new classification that modern medical experts may understand better, this is not the current law.

39.  However, in Sit Wing Yi Sibly v Berton Industrial Ltds [2011] 4 HKLRD 91, the Court of Appeal clearly saw that it would be a problem in the case of an “internal accident” if an argument was raised that the disease was the accident itself so would not require some sort of untoward event (or accident) happening in the employment causing it. Yuen JA stated:

“Death caused by disease alone would not qualify for compensation even if the disease was unknown (and thus unexpected) ...Even if there was an “internal accident”, i.e. physiological change invisible from outside the body (such as a rupture of an aneurysm), it must still have been brought about by “an undesigned untoward event happening in the employment”.

40.  To put it simply: if the “internal accident”, that is, the breaking of the wall of a blood vessel, is deemed to be the accident in itself, why should this accident “still have been brought about by “an undesigned untoward event happening in the employment”? In other words, why does one need to show that an “internal accident” was brought about by another accident happening in the employment?

41.  I think this illustrates the dilemma between an old legal classification and modern medical knowledge.

42.  I do not intend to resolve this dilemma here but, following the above cases of Faulds and Sit Wing Yi Sibly, I think that the court might have to rely on the medical experts to explain the pathology process of any “internal” disease (I would prefer calling this “non-traumatic personal injury”) and to see if it was caused by any identifiable unexpected events capable of being called an “accident” or “accidents” arising out of the employment.  On the other hand, if the medical opinion was that the disease was, say, the result of an insidious and chronic pathological process due to various risk factors not identifiable as “accidents”, then the remedy should not lie in Employees Compensation, but perhaps in a negligence claim (amongst others) if it could be shown that the employment contributed to some of the risk factors.

43.  In this case, we need not be concerned whether the “internal” disease can be deemed an “accident” at the moment the disease occurred, and whether the inevitable “final straw” was arising out of employment during employment or not. The court only needs to be satisfied that the “internal” disease was caused or contributed to by a “non-traumatic” but identifiable unexpected incident or incidents arising out of employment.

Issues in dispute

44.  Of course, it is not in dispute between the experts that the applicant has likely suffered from a pre-existing and undiagnosed high blood pressure which led to a disease called “hypertensive vascular disease” which in turn led to a high risk of cerebral haemorrhage. There is no expert opinion to suggest that the high blood pressure or the “hypertensive vascular disease” has been caused by the employment. It is also not in dispute that both high blood pressure and hypertensive vascular disease should take months or years to develop.

45.  However, it is the applicant’s case that a particularly high level of work-related stress from July 2014 to the date of the accident contributed to or exacerbate the disease. Dr. Chan Sze Tong, expert for the plaintiff (“Dr. Chan”), wrote in his solo medical expert report dated 6 October 2016 that:

“If Mr. Yu has indeed been working under very intense and stressful conditions for a prolonged period of time, his high blood pressure would have been aggravated by those job-related factors. On balance of probability, I believe that job-related stress and overwork have contributed to his intracerebral haemorrhage.”

46.  In accordance with the “classic” legal classification as discussed above, this would be an example of “internal accident”.

47.  The areas of dispute concerns with whether, as a finding of fact, the plaintiff had been “working under very intense and stressful conditions for a prolonged period” as alleged, whether there was medical evidence showing a causal link between “stress” and “intracerebral haemorrhage” and if there was a link, whether the pathological process of this link could be identifiable as “an incident or incidents which qualified as the relevant “accident” that had caused the claimant’s injury”.

The alleged work related stress

48.  The applicant started working for the respondent in 2012, about 2 years before the incident. The applicant is an engineer employed as a data centre manager.

49.  In his witness statement dated 13 March 2018, the applicant stated in some details the nature of his work and his workload prior to the accident on 28 August 2014. I understand that similar information was provided to the medical experts.

50.  The applicant claimed that even right from beginning of his employment, he has to deal with heavy workload and urgent matters.

51.  Under cross examination, the applicant described his typical working day as waking up at around 7 am and logged on to check any company emails. He would leave home around 8 and would buy a breakfast to bring to the office. He would have his breakfast and start working at around 9 am. He would have lunch break from 12:30 pm and, after return from lunch, he would take a nap from 1:30 pm until 2 pm. Then he would work until 5:30 pm.

52.  As for working outside office hours, the applicant said that he would not work during lunch time and usually would not work after returning home after work. He would sleep at around 10:30 pm.

53.  The applicant agreed that he had been following this same routine on the day of the incident.

54.  The applicant also admitted that it would be rare that he had any out-of-hours night phone calls from work. The frequency of such calls would be less than once a month, probably once every 3 months. However, he could not remember when the last night call was, or whether there was any call for emergencies at the data centre in the whole of 2014 but he confirmed that there were no emergencies between May and August 2014.

55.  Upon further cross examination, the applicant conceded that there were many inaccuracies in his witness statement.

56.  For example, the applicant stated in paragraph 21 that his new colleague, Derek Pei, commenced work in August 2014 in Fo Tan data centre so he had to teach him about various matters related to work. He also stated in paragraph 23 that his two experienced colleagues, Johnny Chow and Nelson So, both left employment in July 2014, thus compounding his workload and pressure.

57.  However, under cross examination, he agreed that Derek started work in May 2014 on the day after Johnny left (as evidenced by Derek’s employment contract exhibited). He also agreed that Nelson did not leave employment but was transferred to another department. More crucially, the applicant agreed that Derek, since joining the company in May, took over the management of the Fo Tan data centre and, by August 2014, he was able to do his job.

58.  In fact, when shown the “incident ticket”, the applicant agreed that there were only two emergencies in 2014: one in February and one in March and, on both occasions, the person responding to the emergency was not the applicant himself. Further, both emergencies occurred during office hours. The applicant confirmed that if there were no emergency at night, he would not be called.

59.  The applicant also confirmed that there was no need for him to work in weekends unless there was an emergency, and there was none in 2014.

60.  As for overseas travels and work, the applicant confirmed that he did not have to fly in the month of August 2014.

61.  Regarding the conference call mentioned in paragraph 13, the applicant said that this would only take place once a month at the beginning of each month. For the month of August 2014, this would have been taken place before the 10th.

62.  Regarding the urgent big project mentioned in paragraphs 18 and 19, the applicant confirmed that he did not have to hurry to work “night and day” on 23 and 24 August 2014 to try to complete the draft plan on 26 August 2014. Under cross-examination, he agreed that the contract was signed back in May and (according to the records produced) he had put in the plan on 1 August 2014 at about 11pm, not on 26 August 2014.

63.  Further, as for the urgent work mentioned in paragraph 20, which the applicant stated to be “before the accident”, he confirmed that he actually could not remember the exact dates but agreed that this could be between 26 and 30 July instead.

64.  There were many other instances that the applicant “walked back” from the evidence he gave in the witness statement in face of various records and evidence produced by the respondent. The court needs not recount every instances here but suffice to say that in all, the applicant confirmed that there was no big change in his usual life routines and habits in the period before the incident.

65.  As such, the court does not find that the applicant has worked under “very intense and stressful condition” (or any increase in work stress) at all in the period (from July 2014 or otherwise) prior to the incident. There was, in fact, no significant change in his workload and lifestyle prior to the incident.

66.  It is clear that the evidence the applicant gave in court was substantially different from the information given to the experts. Dr. Chan admitted that his solo expert report was based upon information from a questionnaire provided by the plaintiff. As I understand, the information provided in the questionnaire (which was not enclosed in the Trial Bundle) was more in line with the applicant’s witness statement.

67.  There is a substantial problem in this because the applicant’s claim substantially relied upon Dr. Chan’s opinion (see paragraph 45 above).

68.  For example, Dr. Chan mentioned in “Background working condition” in his solo report that the applicant “had little time for rest, and when he tried to catch some sleep in the middle of the night, he would be woken up by phone calls from his supervisor.” (see page 154 of Core Trial Bundle) However, when Dr. Chan had the chance to interview the applicant (along with Dr. Edmund Woo, the Respondent’s expert (“Dr. Woo”)) for preparation of the joint expert report, the applicant “indicated that he usually slept from 10:30 pm to about 7 am” with no mention of any sleep disturbance (see page 240 of the Core Trial Bundle).

69.  Under cross examination, Dr. Chan explained that he thought that the applicant was stating his “usual sleep pattern” and did not pertain to the “high stress” period. Thus he did not sought clarifications from the applicant and had continued to base his opinion on the assumption that the information in the questionnaire was entirely accurate.

70.  In passing, I do not think that the applicant is a dishonest witness. I think he had suffered from a serious condition and, as he readily admitted in paragraph 3 of his witness statement, this has affected his cognitive function and concentration. It is most likely that he has remembered the matters wrongly perhaps with some degree of “recall bias”, and, when faced with the records and evidence from the respondent, he readily admitted that he was mistaken.

71.  Since the court finds, as a matter of fact, that the applicant did not work under “very intense and stressful conditions” (or any increase in work stress) for the period from July 2014 to the date of the incident, Dr. Chan’s opinion must therefore be disregarded. However, for the sake of completeness, I will discuss the remaining issues.

The medical evidence

72.  Another issue is whether there is medical evidence to show a causal link between “stress” and “intracerebral haemorrhage”.

73.  The experts have been very helpful in providing plenty of medical research literature and these have been thoroughly discussed in court.

74.  I do not intend to recap all the evidence to make this into an academic discussion. In summary, so far as current scientific knowledge is concerned, there is a consistent finding of a strong association between hypertension (which the applicant likely suffered from but remained undiagnosed until after the incident) and intracerebral haemorrhage. On the other hand, there appeared to be conflicting evidence as to the association between stress and intracerebral haemorrhage (the association was more consistent between stress and the other type of stroke, namely, ischaemic stroke). But even in those research studies that found such an association, the association would appear to be with a severe degree of psychological or psychosocial stress (which would be consistent with Dr. Chan’s opinion that “working under very intense and stressful conditions for a prolonged period of time” would have contributed to the applicant’s intracerebral haemorrhage).

75.  I have asked the experts to see if they could locate a more detailed definition of the criteria of “psychological stress” or “psychosocial factor” in certain authoritative studies so that we could see which criteria the applicant’s circumstances might qualify in. However, the experts could not find such information.

76.  Nevertheless, given the limitations, and taking into account that stress could be subjective and difficult to define or quantify, I still cannot see how the applicant’s circumstances from July 2014 to the date of incident (from the evidence he gave in court) could come anywhere near to be categorised as any “severe” degree of psychological stress in any sense of the word.

Whether there were incidents qualified as the relevant “accident” that had caused the claimant’s injury

77.  Further, both experts appeared to agree that the psychosocial stress (if it was indeed a predisposing factor) needed to be for a “prolonged period”. None of the medical research papers are concerned with the association between a short period of stress (of a few weeks or about a month) with stroke. Dr. Woo opined that this must be “persistent for years, not weeks or months, to exert its deleterious effect” and this must be correct.

78.  In other words, the medical evidence shows that the pathological process of intracerebral haemorrhage is (at least in this case), much like the case of Faulds, a chronic and insidious process associated with various risk factors: some strongly, some weakly and some with uncertainty due to conflicting evidence.

79.  The nature of the pathological process in this case is such that any risk factors like “chronic and severe psychological stress” could not be identifiable as “an incident or incidents which qualified as the relevant “accident” that had caused the claimant’s injury”.

Conclusion

80.  In conclusion, the evidence before the court does not support that the applicant was “working under very intense and stressful conditions (or suffered any particular increase in work stress) in the period from July 2014 to the date of the incident. Further, there is conflicting medical evidence as to the association between stress and intracerebral haemorrhage and even in those studies that found such an association, there needed to be a severe degree of stress for a prolonged period. Such a pathological process meant that there could be no “incident or incidents which qualified as the relevant “accident” that had caused the claimant’s injury” (and of course, no such particular “incident” or “incidents” were found in the period prior to the incident in the first place).

81.  Thus, much that the court has sympathy on the applicant’s circumstances, neither the factual nor medical evidence supports that this is an appropriate claim under Employees’ Compensation.

82.  Of course, in this hearing, we are only concerned with any alleged “incidents” (causing any alleged increase in work stress) in the period before the incident which may qualify as the relevant “accident” causing the applicant’s injury. If the applicant’s case is that he has been under unreasonable and prolonged period of work-related stress (for example, since the beginning of employment) which should have foreseeable adverse consequences to his health condition, then the cause of action may lie elsewhere.

Order

83.  I would therefore order that the claim be dismissed. There be an order nisi for the costs of the action be to the respondent to be taxed if not agreed, with certificate for counsel. The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.