TAM KING CHIU v. HON MING KUEN

HCPI 1458/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 1458 OF 1999

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J U D G M E N T

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1. On 28 July 1997 the plaintiff was crossing a public road on foot when he was struck and injured by a vehicle driven by the defendant.

2. This is his claim in damages for loss resulting from his injuries.

Background

3. On the day in question the plaintiff was 46 years old and married. He was the breadwinner of the family. His wife then as now lived in Mainland China. At the time they had two sons. The older, then about 19, was living with him in a 2nd floor apartment in Lo Wu Tsuen Wan. The younger, aged about 1 year, was in the throes of being approved to live permanently in Hong Kong.

4. The plaintiff was by trade a dim sum chef. When working he was paid the standard income which at the time was $13,000 per calendar month. In April 1997 he joined the staff of the Ho Choi Restaurant. But on 15 July of that year he resigned. This was because his son's application for emigration to Hong Kong was pending and he wanted to devote himself to completing the necessary documentary procedures and getting him ready to bring to Hong Kong. It was his intention to resume work as soon as his son's affairs were sorted out.

The accident

5. On 28 July 1997 the plaintiff had arranged to visit the family on the Mainland. In the course of his journey he boarded a PLB at Yuen Yuen Hok Yuen whose route was along Lo Wai Road and into Tsuen Wan. He had with him a small suitcase. As he boarded he suddenly realised that he had left his wallet and travel documents at home. As Lo Wai Road runs close by where he lives, he asked the driver if he could stop at a point opposite his apartment so that he could run up and get his papers. The driver agreed.

6. Lo Wai Road is a dual carriage way. That part of it which runs past the plaintiff's home is at the crest of a slight rise. For a material distance on either side the carriageways are separated by double white lines as an indication of restricted visibility.

7. Coincidentally, at the place where the plaintiff was waiting to get off, there was a new passenger who signalled that he wanted to embark. The driver stopped the PLB at the kerbside. By doing so he effectively blocked the Tsuen Wan bound carriageway. The plaintiff, leaving his luggage on board, alighted, walked around the front of the PLB and proceeded to cross the road; his home was in that direction on the right hand side. Just after he crossed into the Yuen Yuen Hok Yuen bound carriageway he was struck by a light goods vehicle which was in the throes of overtaking the PLB, heading towards Tsuen Wan. The defendant was driving. Having driven up behind the PLB and finding his way obstructed by it, he elected to get past by crossing the double white lines and entering the opposing carriageway. The plaintiff emerged from the front of the PLB and into his path too late for him to avoid a collision. The plaintiff was struck by the front of the vehicle towards the nearside of it, as evidenced by a dent in the bodywork above the nearside headlight. The force of the blow knocked him to the ground about two metres away.

8. Whether the defendant was negligent resulting in the accident and if so to what extent, if any, the plaintiff contributed is the issue of liability I am required to resolve. The defendant was prosecuted for reckless driving in the Magistrate's Court. He was convicted after trial for the offence of careless driving.

The plaintiff's injuries

9. The plaintiff complained of pain all over his body; in particular on his chest and right wrist. He was dizzy and his head ached. He was helped to the side of the road and taken by ambulance to Yan Chai Hospital. He was X-rayed and found to have fractured the 9th rib on the right hand side and the radius and ulna bones in his right wrist. The wrist fracture required surgery for the purpose of open reduction and plating, which was performed on 6 August. He was discharged from hospital on 15 August and thereafter received physiotherapy twice per week until August 1998. The plates and screws were removed in April 1998.

10. Meanwhile in November 1997 he was examined in the Neurosurgical Division of Princess Margaret Hospital because of complaints of dizziness and memory problems. The examination revealed no neurological defect. In February 1998 he was subjected to a C T scan with normal results. But by virtue of the symptoms complained of the plaintiff was diagnosed to have post concussional syndrome (PCS), and prescribed an anti-emetic drug called Stemetil. He was last seen on 27 February 1998.

Post-accident developments

11. In 1998 the plaintiff's wife gave birth to a third son and all three children are now living with and are dependent on him, as is his wife, she still living in China.

12. The plaintiff has not since the accident worked. As from 8 August 1997, that is two weeks after the accident, he has been receiving Comprehensive Social Security Assistance (CSSA) from Social Welfare Department (SWD), and payments are continuing, averaging $12,890 per month. By this means he is supporting his family. He wanted to return to his trade of being a dim sum cook as soon as his health was restored. But he complains of residual pain and weakness in the right wrist, loss of dexterity of the fingers of his right hand and tenderness in the left chest all of which combine to make him quite unable to cope with the lifting and other physical demands of a dim sum cook. In addition he regularly suffers from headaches, dizziness and memory loss. He has registered with the Labour Department but has received no job offers apart from one which was short-lived and not successful. He has not seriously considered becoming a security guard or similar because the income is not enough to support a family of five.

13. That he has not been working has allowed him to look after his two youngest sons, helped by his wife when she visits.

14. The extent to which the accident has affected his income earning capacity up to trial and for the future is not agreed; nor is the extent, if at all, to which I should make provision for the CSSA payments.

Pre-accident injury

15. On 2 January 1995 the plaintiff slipped at work and fell, fracturing the same radial bone in the right wrist with which I am now concerned. He was admitted to hospital on 5 January and open reduction and buttress plating was carried out on 6 January. He was discharged on 9 January. The injury may have been aggravated when he fell twice, on 7 February and 12 March, breaking his falls by putting out his right hand. The implant was removed on 9 August 1995. He was attended until 11 March 1996 by which time he was complaining of residual tenderness and stiffness. He was off work for a year before returning to work, to full capacity, as a dim sum cook.

16. The extent to which that injury impacts on his current condition and affects his ability to work is another issue for me to resolve.

Liability

17. I propose now to consider the evidence relating to the accident to establish whether the plaintiff has proved negligence and the extent if any to which he contributed.

Evidence on issue of liability

18. The driver of the PLB Kei Ping Yong gave evidence first. When requested by the plaintiff to stop he did so. He told the plaintiff to be quick. As he pulled up he looked in his rear vision mirror. He saw no traffic behind him. His long distance view behind was limited given the gradient of the road. At no stage was he aware he was obstructing traffic. Had he been honked at or seen that he was he would have moved on. He did not see the defendant's vehicle behind him at any stage. His attention was diverted to the passenger boarding, as he fed the coin box. He watched as the plaintiff walked at a fast pace across the front of his bus, hurrying but not running. Then as the plaintiff crossed into the opposing carriageway he noticed for the first time the defendant's LGV passing alongside. It struck the defendant and he was thrown to the ground two metres away. The LGV stopped about one to one and a half lengths beyond the front of his bus. He had the impression it was travelling at speed given the suddenness of its appearance, the force of the impact and that it left skid marks the length of the vehicle before coming to a halt. He thought its speed was 50 kph. He agreed that had the plaintiff crossed behind the PLB it would have been less hazardous.

19. Next came the plaintiff. He conceded he left the bus in a hurry to retrieve his wallet. He, too, agreed that it would have been safer to go behind the PLB - certainly he would have spotted the traffic coming from that direction. But he said that where the PLB had stopped made it difficult to walk back down the side of the bus - there was barely enough room. And it would have added time to his journey. He said when he got to the centre line he looked left and saw the way was clear. Then he looked right, but too late to avoid the LGV which was by then right on to him.

20. Then I heard from the defendant. He is a professional driver well used to travelling on Lo Wai Road. Prior to the PLB stopping he had been following it. As it drew to a halt he pulled in behind it. He saw no one getting on or off. He waited, stationary, for about half a minute. As the PLB remained at a standstill he checked to see there was no opposing traffic and then pulled out to pass it. He saw the plaintiff only as he drew abreast of the PLB, too late to avoid the collision.

21. He was in second gear, accelerating from a standing start travelling at 20-30 kph at the point of impact. He formed the impression the plaintiff was looking straight ahead. At the point of impact he braked hard and his wheels locked and he skidded. He thought he stopped in about half his vehicle's length.

22. He said he knew he was crossing the double white lines in breach of the road code but he did so because he was not prepared to wait behind the stationary PLB any longer. It did not cross his mind that there might be pedestrians in the vicinity .

Findings of fact

23. I am satisfied the defendant did not speak the truth. His account was consistent with his vehicle travelling in tandem behind the PLB, pulling in behind it for the expected brief duration it normally takes for a pick up or drop off, finding the time to wait excessive and then pulling out to overtake. But had this really happened I am sure Mr Kei the PLB driver would have seen him as he pulled up to a halt and he did not. And had he waited, stationary, before pulling out as he did for as long as he says, it is more than likely that the hurrying plaintiff would have already crossed and been well out of harm's way. Further, I am satisfied he was travelling much faster than he was prepared to say. The force of the impact dented the LGV and knocked the plaintiff, who is well built, some two metres. Mr Kei saw skid marks. The defendant admitted his wheels locked and he skidded. Just how fast he was going is a matter of conjecture; Mr Kei's estimate was an impression. But I am satisfied it was faster than the LGV would have been capable of from a standing start only six or seven metres back. I find on the evidence that the defendant came up behind the PLB when it was stationary, saw the way ahead was clear and pulled out to pass him, aware that in doing so he was crossing the double white lines but confident that he could complete the manoeuvre safely. On his own admission he did not put his mind to there being any pedestrian traffic.

24. I am satisfied also that the plaintiff was in a hurry to cross the road knowing that he was holding others up for as long as it took to retrieve his wallet. It was for this reason that he chose the shorter route across the front of the bus. As he crossed the centre line he looked to the left but failed to look, or to look properly, to the right and thereby did not see, until too late, the LGV.

The outcome on liability

25. Mr Pirie, counsel for the defendant, took me to the case of Lau Shun Hing v. Ng Ching Hung [1991] 1 HKC 179. In that case the defendant drove his vehicle past a stationary PLB when suddenly the plaintiff ran out from in front of it into his path. At first instance the judge found negligence established but the Court of Appeal held he was not.

26. Mr Vaughan, counsel for the plaintiff, produced three cases, namely Tang Kwok Chiu v. Lee Fuk Yue [1980] HKC 71 (a Hong Kong Court of Appeal case) Baker v. Willoughby [1970] AC 467 (a House of Lords case) and Liu Jianhiu v. Mayho (an unreported Hong Kong Court of First Instance case). All three have similar facts; that of a pedestrian in the act of crossing the road being struck by a vehicle. In each case the parties involved saw or ought to have seen the other some time before the collision. In each case the driver was found liable in negligence subject to a 25% contribution from the pedestrian.

27. These cases are useful but each must depend on its own facts.

28. In this case a material feature is the defendant's decision without lawful excuse to cross the double white lines, in breach of regulation 11 of the Road Traffic (Traffic Control) Regulations of Cap.374. This is a serious offence and for good reason. Double lines are intended to prohibit the otherwise lawful use of part of the carriageway where, by virtue of some geographic or other feature, it would be hazardous to do so. The driver who contravenes puts the safety of himself and others at risks. It is no answer to complain that a PLB was obstructing the way and that the other lane was clear. That response would hold good where the overtaking is not, as here, an unauthorised manoeuvre, not restricted by the double white lines. It follows that the driver who decides to take the risk has a duty to show special care to avoid an accident. This would include providing for the unexpected; but I hardly think the presence of a pedestrian in the vicinity of a stationary PLB falls into that category. The defendant was not careful; he was careless. The accident happened. He was convicted of careless driving. That in itself raises a presumption against him, and there was nothing before me to disturb that. I am satisfied that the defendant is liable in negligence.

29. I come now to consider the plaintiff's role. He was in a hurry, with his mind on his wallet. He owed himself the duty to see the way was clear before proceeding and check the traffic in both directions. He failed to do so at least to an appreciable extent. I fix his contribution in negligence at 25%.

Damages

30. I come now to consider the evidence going to the plaintiff's capacity to work post the accident, coming from the plaintiff and the doctors appointed by both sides to examine and report on him. In addition there is a surveillance video I shall refer to.

Evidence of loss

31. In cross examination it was put to the plaintiff that allowing for a reasonable recovery time he could have gone back to work, and as a dim sum chef, with assistance when it came to lifting or other physical activity. He disagreed. He said the sort of exertion necessary was beyond his stamina, and a chef needs the full dexterity of both hands which he no longer has. He conceded that at some stage he could have worked as a security guard or similar, but said the income would not have been enough to support the family; he was getting much more from SWD who would have terminated his CSSA were he to have taken on such work. He accepted that he was claiming for lost income from 1 August 1997, even though at the time of the accident, only three days before, he was unemployed. He could not (or would not) say when, but for the accident, he would have expected to return to work, beyond that it would have been before the end of the year. He did not think there would have been any difficulty in finding work, even allowing for the economic downturn.

32. He reiterated a real desire to return to work, but that his strength and disability have prevented that. But he said there was in part another reason - as a single parent in Hong Kong he has two infants to look after. He said were he to be working full time they would probably have to live with his wife in Mainland China.

33. Invited to comment on the video in which he was seen carrying a plastic bag in one hand and then the other, he said it contained toys and was not heavy.

34. It was put to him that he had all along exaggerated his disabilities. He disagreed.

35. Dr Lee Po Chin is an orthopaedic surgeon who was invited to see and examine the plaintiff in October 1998 and again in April 1999. Following the second examination he noted the following complaints:

"Complaints

1. Right wrist pain and weakness with numbness of the palm. He claimed that he could only carry approximately 10 pounds.

2. Left chest pain on walking and exertion. There were no breathing difficulties. Mr Tam claimed that the pain was very disabling.

3. Headache and dizziness with loss of memory."

36. He found as follows:

"Mr Tam suffers from:-

1. Post truamatic osteoarthritis as a result of the intra-articular fracture of the right wrist. The fracture has healed but there was residual deformity of the distal radius and its articular surface. This has resulted in pain, weakness and limitation of movements of the right wrist.

He has previous injury to the right wrist due to another industrial accident and was treated in Kwong Wah Hospital, leaving residual disability.

2. Residual pain in the left chest. He did not complain too much about his back pain this time although it was still there. His chest pain should be mild.

3. The cause of his right knee pain was osteoarthritis and probably not related to the injury.

His major complaints are dizziness, headache and loss of memory. Mr Tam felt that these are the symptoms that prevent him from returning to work. Assessment by a neurologist or a psychiatrist will be valuable in determining the disability related to this group of complaints.

Disabilities

Nature

As far as the musculoskeletal system is concern, Mr Tam's disabilities are:-

1. Pain and limitation of right wrist movements with muscle weakness of the wrist and grip;

2. Residual pain in the left chest wall."

37. Dealing with the physical impairment, he was satisfied that the disability complained of was permanent. He said this deformity could well impact on his work as a dim sum chef for which the capacity to lift weights and press hard with the wrists was a necessary function. Of his capacity to work he said:

"In view of his symptoms of the right wrist and chest, Mr Tam should be able to return to jobs that do not require lifting of weights. He may not be able to return to his old job as a 'Dim sum' chef as the job requires him to lift about 30-40 catties of weights rather frequently. However, he should be able to work full time in jobs like security guard, messenger or clerk."

38. Invited in a later report to comment on the influence if any of the pre-accident injury he wrote:

"There was probably some degree of impairment to Mr Tam's right wrist after the accident in 1995. The medical from Dr. K.H. Mak did not elaborate the type of fracture Mr Tam had, or the eventual functional status of the right wrist. Without adequate information, it is difficult to quantify the degree of impairment that existed before the current injury. However, it is likely that the current injury in 1997 produces further deterioration of the function of the right wrist.

It was likely that the injury in 1995 had produced impairment of function of his right wrist but might still allow him to work. The injury in 1997 probably produces further deterioration that prevents Mr Tam from returning to his work as a "Dim Sum" cook."

39. In the witness box he conceded that that finding was somewhat speculative in the absence of X rays taken before the accident with which I am now concerned.

40. I come now to Dr Yu Yuk Ling neurologist, who was asked to examine and report on the plaintiff's neurological impairments. He saw the plaintiff in October 1999. Following the examination he gave his opinion as follows:

"13. In the accident on 28.7.97, Mr. Tam sustained a minor head injury. He had, a brief period of loss of consciousness and post-traumatic amnesia of about half to one hour.

14. Patients with head trauma may be complicated by post-concussional syndrome (PCS). The head trauma is usually sufficiently severe to result in loss of consciousness. This syndrome includes symptoms such as headache, dizziness (usually lacking the features of true vertigo), fatigue, irritability, difficulty in concentrating and performing mental tasks, impairment of memory, insomnia, and reduced tolerance to stress or emotional excitement. These symptoms may be accompanied by feelings of depression or anxiety. The condition is thought to be partly physical due to disturbance of brain functions and partly psychological in reaction to consequences of the accident.

15. Mr. Tam suffers from PCS as evidenced by the symptoms of headache, dizziness, impaired concentration, apparent impairment of cognition and memory, tiredness and irritability. This condition is probably permanent by now, as it is over 2 years from the time of injury.

16. Because of the symptoms of PCS, Mr. Tam would need medical consultations by a neurologist or neurosurgeon. During the consultation, he would be counselled and reassured that the head injury was minor and that his physical and mental symptoms may become more tolerable. Symptomatic treatments (drugs for headache and dizziness) would also be given. The cost of each consultation inclusive of medicine is about $800. He would need such consultations for 6 months (weekly for 1 month, then 2-weekly for 1 month, and then monthly for 4 months), after which he may come to tolerate the symptoms better and requires consultations on a need basis."

41. I mention here that the sum total of the costs of this treatment of $8,000 has been agreed as a post-trial medical expense.

42. On the plaintiff's job prospects, he reports:-

"His job status and employability. He is currently unemployed. I am of the opinion that as far as the PCS is concerned, he can resume his pre-accident employment as a dim sum cook, but in a reduced capacity. He could also consider the jobs which Dr. Lee has recommended, but again his work performance will be affected by PCS."

43. From the witness box he said that he accepted the plaintiff's word that he had lost consciousness whilst conceding that there was no reference to this in the notes made following his admission. He believed a brief loss of consciousness may have been missed. It was put to him whether he thought some or all of the symptoms may have been exaggerated. He said he saw no clues of this.

44. Dr Arthur Chiang was the orthopaedic surgeon appointed by the defence to see the plaintiff. He examined him in August 2000. He agreed with Dr Lee that there is a permanent disability of the right wrist. He said:

"The permanent disability would have suggested that there were some residues in the right wrist. However, the current examination findings could only reflect a combination of the 1995 and 1997 accidents, but would not be able to conclude on the contribution from each of the 2 accidents. It cannot be determined precisely on which accident would have contributed more to the narrowed joint space of the radiocarpal joint and the chance of future post-traumatic arthritis."

45. And of his capacity to work:-

"From the orthopaedic injuries, the right wrist stiffness and residual weakness might not have allowed him to return to the pre-injury job. The right wrist might allow him to work in the selected light duty jobs as a cook, which do not require the frequent handling of heavy weights.

He could also work as a security guard, or cleaner."

46. Dr Chiang was not called on to give evidence.

47. Finally I come to Dr Brian Choa, the neurologist who saw the plaintiff for the defence in August 2000. He set out the neurological complaints as follows:

"1. His memory is impaired. His wife says that he cannot retain instructions for even 2 minutes. This forgetfulness is almost invariable. He mislays things and forgets even his own telephone number, on occasion having to ring his mother for it! Tam is, however, able to get out on his own and does not get lost.

2. He describes a distressing, drawing type of pain that starts above his nose and radiates through his head to the back of the neck and then down the shoulders and back. This pain is always in the background but severe attacks come on about twice a month. During these, he feels that he cannot control his body and has difficulty getting up from bed or a chair. If it comes on when he is walking, he has to sit down for some seconds. He takes regular medication for the pain. He believes this treatment to be helpful. The overall trend is that there has been no improvement over the past 3 years.

3. His wife tells me that Tam is like a different person now. He is irritable. Tam admits to feeling "very troubled" inside. He has had spells of feeling very depressed. There are economic pressures from not being able to work. He tried to study Chinese Medicine (!) and found he could not remember the material even for one day. Because of his right wrist (which is weak and hurts) and his head symptoms, he is not hopeful of being able to return to his pre-accident job. He hopes to have the money to open a small store."

48. He assessed the plaintiff's permanent neurological impairments as occipital neuralgia, cervical spondylosis and depressive illness.

49. From the witness box he opined the headaches could be relieved by a course of injections.

50. Finally I come to the video. This depicted the plaintiff walking the streets and waiting for and boarding an MTR train accompanied by a small child, wearing a knapsack and carrying a plastic bag. He appeared to be in no difficulty in carrying the bag in either hand. It was not possible to tell whether it was heavy or, as the plaintiff had said, light; however whilst waiting for the train he did not bother to put it on the platform.

Findings of fact

51. I am satisfied on the evidence that the plaintiff is permanently disabled as described by the doctors. Physically this is the permanent loss of strength and mobility in his right wrist and a tenderness in the chest region. I do not find he has all along been feigning or exaggerating his disabilities; the video is inconclusive and that view is not supported by the doctors. I am satisfied that he is prevented by them from returning to work as a dim sum chef because of the physical demands of that occupation. I do not think it is feasible that he could call upon others to help him. I cannot see a cost-conscious restaurant hiring him on that basis. In any event much of the exertion is in the kneading of dough which I imagine is a major function of a dim sum chef at work. As far as the effect of the pre-accident injury is concerned this probably is a factor affecting his future loss of capacity. Given the uncertainty of establishing to what extent I propose to deal with this by adopting a more modest multiplier than otherwise.

52. There is also the PCS. This does not of itself impact significantly on the plaintiff's work prospects though it does play a part in the overall assessment of the plaintiff's ability to work.

53. It is difficult to know when the plaintiff would have returned to work had he not suffered the accident. He was not helpful in this regard; there is also the prospect that it might not have been as easy as he said. It behoves me to select a date and I do so; two months down the road to 1 October 1997.

54. On his own account the plaintiff could have worked as a security guard or similar but chose not to. Given his association with restaurants and kitchens that of a watchman/guard of a restaurant is probably the most appropriate. As to when he was fit to take that on I believe, having regard to the nature of his injuries, he could have done so from 1 June 1998, and thereby reduced his losses from that date.

55. Given his age, the degenerative processes already at work in his body and the effect of the pre-accident injury I believe 7 is the appropriate multiplier.

56. I come now to the assessment of damages.

PSLA

57. This is agreed at $400,000.

Special damages

58. These are agreed at $45,000.

Loss of earnings pre-trial

59. The period in question is 1 October 1997 to 31 March 2001 - 42 months.

60. It is agreed that in 1997 a dim sum chef was earning $13,000 per month and now earns $13,332 per month, averaging $13,166 per month for the period. A restaurant guard now earns $6,304 per month, and adopting the same percentages that has probably risen from $6,150 per month, averaging $6,227 per month.

61. So, pre-trial, his loss of income was:-

1.10.97 to 31.5.98, 8 x $13,166	$105,328
1.6.98 to 31.3.01, ($13,166 - $6,227) x 34	235,926
	341,254

Loss of earnings post-trial

($13,332 - $6,304) x 7 x 12	$590,352

Future medical costs

62. These are agreed at $8,000.

Interest

63. This is agreed at 2% per annum on the PSLA award from the date of the writ to the date of judgment, that is $10,000, and at 6.25% on the pre-trial loss of income and special damages from the date of the accident to the date of judgment, that is $88,597.

64. But this is not the date of final judgment as I shall come to; thus this interest continues to accrue from 1 April 2001 to the date of final judgment.

The Total

65. The sum total so far is thus as follows:

PSLA	400,000
Interest thereon	10,000
Special damages	45,000
Pre-trial loss of earnings	341,254
Interest thereon	88,597
Post-trial loss of earnings	590,352
Post-trial medical expenses	8,000
	1,483,203
Less 25%	370,800
	$1,112,403

Why this judgment is not final

66. Before closing his case Mr Pirie disclosed that attempts had been made to establish how much CSSA had been paid to the plaintiff, and what steps were available to or contemplated by SWD to claw back this amount or part thereof. Both counsel agreed, as do I having seen a letter from SWD, that the response is not clear. As a consequence he felt he was ill-equipped to address me on how I should provide for or otherwise deal with the CSSA payments made. He proposed an adjournment for enquires to be made and, if necessary, evidence to be called, and research on the law, and that in the meantime I should hand down an interim judgment dealing with all other issues. The amount of CSSA being $567,190, a not insignificant sum, I acceded to this request. This, then, is the interim judgment; there is already liberty to apply for the remaining matter to be dealt with.

67. Costs will be reserved, save that the plaintiff's own costs are taxed under Legal Aid Regulations.