RUTHANNA LAU SAU YEE v. HONG KONG BALLET LTD. & ANOTHER

HCPI 772/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 772 OF 1997

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J U D G M E N T

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1. This is an action for damages for personal injuries suffered by the plaintiff in an accident on 17 September 1994 in the course of her employment with the 1st defendant, in premises owned and managed by the 2nd defendant. The plaintiff is a ballet dancer and is now aged 29. The accident occurred during a practice session with the rest of the ballet company in rehearsal room GR2 in the Cultural Centre, Tsimshatsui, Kowloon. These practice, or warming up, sessions, took place every day from 10 am to 11.30 am, and it was towards the end of the session that the dancers were taking turns, of about four at a time, to perform a movement called a grande cabriole ouverte. The main part of this movement required the dancer to perform a jump, during which the feet are brought together, and then landing on one foot, in this case the left, and briefly holding the other leg at the horizontal. It was in landing from this movement, or immediately thereafter, that the plaintiff says that her left foot slipped on a patch on the floor, causing her to fall, twisting her knee and damaging her anterior cruciate ligament.

2. In her statement of claim, the plaintiff says that the cause of the accident was losing her balance on the slippery floor and falling. She claims that the floor was slippery and therefore unsafe to dance on and that the 1st defendant, her employer, was in breach of an implied term of her contract of employment to take all necessary precautions for her safety at work, not expose her to risk of injury of which they knew or ought to have known, and provide her with a safe place and system of work. Her case against the 2nd defendant is failure to discharge the common duty of care owed to her under section 4(2) of the Occupier's Liability Ordinance, Cap. 314.

3. At the commencement of this action, and throughout the proceedings until the beginning of this trial, it was clear that the plaintiff, while maintaining that the floor where she landed was slippery, did not know what the cause was of that slipperiness. A number of possible causes have been put forward on her behalf, including a deposit of French chalk from its use by ballroom dancers, improper cleaning by using a rotary electric brush or excessive washing. However, at the beginning of this hearing, Mr Wright, on her behalf, made it clear that the only cause now relied on was wear and tear by long use, and possibly overuse, creating slippery patches.

4. The position of the defendants is that the plaintiff was aware of the inherent risks of injury in her profession and should have guarded against them, or that she fell because of her own incorrect technique in performing the movement. They deny that the floor was slippery, or so slippery as to be unsafe and to cause a danger to the plaintiff.

5. The rehearsal room GR2 was one of the rooms in the Cultural Centre leased to the 1st defendant by the 2nd defendant. The first agreement was dated 1 June 1992, and a further agreement was entered into on 16 June 1994 for two years, I assume on similar terms, although I have not been shown a copy of the 1992 agreement. The 1994 agreement gave the 1st defendant sole use of the rehearsal rooms from 9 am to 6 pm from Monday to Friday, and from 9.30 am to 1.30 pm on Saturday. After these hours the rooms were let to other users, such as ballroom and other dancing organisations, although the only record I have seen shows such use ending at about 9.30 pm. The floor in GR2 was originally a plain wood surface and there had been numerous complaints by the dancers themselves and the 1st defendant to the 2nd defendant that this was too hard, with the danger of injuries. As a result of this, and following discussions between the defendants, and a request by the 1st defendant for a proper dance floor, the 2nd defendant first moved a sprung floor from the Grand Theatre to GR2 for rehearsals, and in June 1994 a demountable sprung floor was installed for the sole use of GR2. Meanwhile, in 1992, shortly after taking the lease, the 1st defendant had arranged and paid for a flexible, padded, slip resistant flooring called Harlequin dance flooring (Harlequin), which is a thin material, 1.3 mm thick, made mainly of rubber, vinyl and woven fibres and supplied in rolls which are laid in strips 2 metres wide with tape securing the joining edges. The makers claim a useful life for this flooring in excess of 7 years. The evidence here is that it was the same flooring that had been laid in 1992 which was still in place at the date of the accident in September 1994, and was therefore a little over 2 years old, assuming that it was new in 1992. As to that, there is no evidence.

6. There can be no doubt, and it is agreed by all the witnesses who are, or have been, ballet dancers, that there are risks involved in the profession, as with any occupation which requires athletic prowess, extreme physical fitness, intense concentration and skilful co-ordination of movement. Correct technique is essential, in particular landing correctly from jumps so that the position of the knee is directly over the foot. I accept the evidence of the defendant's witnesses, which was not seriously disputed, that accidents happen to the best dancers at some time, and it would be unusual for any dancer not to have had a fall at least once in their career, causing injuries of a lesser or greater degree, often through their own error or that of another dancer.

7. The first question before me now is whether the plaintiff fell because the movement was not executed by her correctly, or from a moments inattention, or whether she did land on a slippery part of the floor which caused her to lose her balance.

LIABILITY OF THE 1ST DEFENDANT

8. It is not disputed that the accident occurred towards the end of the one and a half hour practice session, and the plaintiff says that the dancers might execute as many as 200 such jumps during a session, similar to this. On this occasion she had done so without incident. She is an experienced dancer. Although she had only been with the 1st defendant since 1992, she had trained as a ballet dancer for many years, gaining certificates from the Royal Academy of Dancing at elementary, intermediate and advanced levels, in 1987, 1988 and 1991 respectively. She was at level 3 in the corps de ballet, which was the middle of the five levels, and from which a good dancer might hope to progress to coryphée, soloist and eventually principal. She had done this movement many times before, did not consider it particularly difficult and was adamant that she had made no mistake. Indeed, she went on to say that she had never seen anyone fall in the course of a cabriole, and Mr Stephen Jeffries, the 1st defendant's present artistic director, and himself an experienced dancer, confirmed that he had never known anyone injure themselves in the movement. The plaintiff herself was satisfied that her technique was correct. Some of the defence witnesses were not so certain. Ms Anna Serafinas, who was then the ballet mistress in charge of the practice session, said that the plaintiff had a tendency to turn out her feet too much, which would result in the alignment of the knee and foot being incorrect.

9. The 1st defendant's witnesses were of little assistance as to the accident itself. The only one who says that he saw it, Mr Frankie Lai, claims that he saw her land with her ankle and knee bending inward, and that this caused her to fall. I do not set great store by this evidence. He admits that he was the opposite end of the room, a number of dancers were performing the movement continuously in sets of four, and he does not say why he was particularly watching the plaintiff. In addition to this, he only came forward to make a statement less than two months before this trial, in an action commenced five years ago and in which most witness statements were prepared in 1999. I am not entirely satisfied as to his motives for giving evidence now, and his memory of something that occurred nearly nine years ago must be suspect, even if he was able to see what happened, which I also doubt. I might add here that the attitude of all the defence witnesses was clearly to disapprove of a dancer taking action against her company in a situation such as this, and I have to look at their evidence carefully in the light of this.

10. What then is the evidence of the state of the floor itself? The plaintiff says that this was one of two or three slippery spots, known to the dancers, and that there had been complaints about them by the dancers to the 1st defendant, and two other dancers had slipped but without seriously injuring themselves. This problem, she says, began early in 1994, and she said that it was brought up at company meetings. This however, is not only denied by the 1st defendant's witnesses, but is wholly unsupported by any documentary evidence, which otherwise records matters discussed at such meetings, without any suggestion of such a complaint prior to the plaintiff's accident. In her witness statement, she refers to a meeting in June or July 1994 when she says the then artistic director said he would take it up with the 2nd defendant. I find this not only unsupported by other evidence, but improbable, as the 1st defendant had assumed responsibility for the dancing surface of the floor by installing their own Harlequin flooring, there was no reason to involve the 2nd defendant. I believe that she is confusing this with the earlier complaints about the hardness of the floor which the 2nd defendant resolved to their satisfaction.

11. The only other witness who supported her account of the slippery nature of the floor, and the complaints, was Mr Ivan Yuen. However, I was not impressed by his ability to accurately recall these events. He claimed that slipperiness had been a problem since they first moved to the Cultural Centre in 1992. Again I am satisfied that he is confusing this with the hardness complaint. He also said that different spots were slippery at different times and that there was a problem soon after starting to use the Harlequin flooring. I did not find him a witness who was able to assist materially in the matters before me.

12. In short, I am not satisfied that there had been any complaints about this floor, nor that there had been any accidents caused by slipperiness, and to this extent I accept the evidence of the defendants' witnesses. This does not mean that it was not in fact slippery and there are other matters to which I should have regard in this respect.

13. The first of these is what, in this context, is meant by "slippery". Clearly for ballet dancing a floor cannot be totally without friction, as many steps need to be executed by sliding the feet. It is also clear to me that the Harlequin flooring, being designed for such dancing, and widely used for it, has a surface which, it is not disputed, is close to ideal, with sufficient grip for jumps, but also an appropriate amount of slip for other steps. Further to this, an experienced dancer, as the plaintiff, in my view properly, claims to be, is always acutely aware of the nature of the surface they are dancing on and allows for it accordingly, depending on the movements being executed. Thus, although the manufacturers claim that the use of rosin on a dancer's shoes is unnecessary on their Harlequin floors, all who gave evidence here said that they would use it at times, using their own judgment, based on their experience and what was required at the time.

14. Another matter is the question of the statements given in reports of the accident shortly thereafter by Mr Martin Lau and Ms Serafinas. Mr Lau was another member of the corps de ballet and says he was the plaintiff's girlfriend. He assisted the plaintiff to complete her accident report form about two weeks afterwards in which he recorded that the place she fell was "a very slippy area". His explanation for this was that this is what the plaintiff told him and he believed it, although he had seen no-one else slip in that area. He also claimed that he did not take very seriously the content of the form, and considered it a procedure to be gone through. I find his explanation credible and do not consider that his statement assists my findings here.

15. Of more importance, however, is the statement of Ms Serafinas given in relation to the Employees' Compensation proceedings arising out of this accident in July 1995, some ten months later. When asked about the condition of the floor, she replied:

"The floor has become slippery due to wear and tear and there are some minor accidents before but not so serious as Ruthanna's case."

16. In evidence she said at first that she could not recall why she said it was slippery, and that by wear and tear she meant that it was frayed at the edges. Later she said that it was because she was sympathetic to the plaintiff. This is understandable. Where there is a choice of only two explanations for a fall, that the dancer used incorrect technique or that the floor was slippery, one can imagine, where it is hoped that she will continue as a valued member of the company, that the ballet mistress would not be hasty to blame the dancer herself in a situation where she also has sympathy for her situation. Having said that, I am also of the view that she did believe that there was a degree of slipperiness in the flooring. Whether this was such as to amount to a danger to the dancers which could and should have been avoided I will look at shortly.

17. The only other evidence as to the condition of the floor that year is in the minutes of a staff meeting held on 8 November 1994 where one item on the agenda was to look into the question of replacement of the worn out flooring in GR2. Ms Serafinas says that this simply referred to the frayed edges which were also torn. This may well be the case, as it was certainly not then pursued, which I would expect if a dangerous condition had been perceived, no replacement of the flooring taking place until January 1996.

18. In the light of the evidence before me I come to the conclusion that there was a degree of slipperiness in the flooring of GR2 in September 1994. But the crucial question is the extent of that degree, whether it was within the limits which professional dancers accepted and allowed for, if necessary by the use of rosin, or whether it was such as to create a danger to the dancers of which the 1st defendant should be aware. It is clear to me that the floor was not old and worn out in the sense that it was past its useful life. It is likely that it was little more than two years old, and, although it had been subjected to moderately heavy use, the major part of that use had been by this ballet company, using the floor in the way it was designed. Even if the manufacturer's claim of a life of over seven years is exaggerated, it seems to me unlikely to have reached a stage that it was no longer fit for the use for which it was designed in two. This is also apparent from the attitude of the dancers themselves. As I have found above, there were no complaints from them that it was anything other than an appropriate surface to dance on, and while there had been the usual minor instances of dancers falling in practice, none can be attributed to abnormal slipperiness of the floor beyond that expected of such flooring. Indeed, there is no evidence of any other such accidents occurring after this, although the flooring was not renewed for a further 16 months. Had it been in such a condition of wear and tear as to create a danger in September 1994, it would be unusual if its condition had not worsened after that and given rise to other accidents. Yet while there are reports of a number of accidents thereafter, only one dancer claimed that she slipped, in 1996, and that was in rehearsal room GR3.

19. I would add to this the evidence of the practice session itself at which the plaintiff was injured. There were in excess of twenty dancers in that room, all performing the same steps and movements, in the same area, yet not only were there no other instances of falls or slipping, but there were equally no complaints from any of them. Experienced dancers such as these are well aware of the inherent dangers of their profession, and I do not find it credible that, were there a situation which made that danger greater, not one would at least draw it to the attention of the ballet mistress, or the management of the company. Yet no such complaint was made. It is evident from the alacrity with which the 1st defendant dealt with the problem of the hardness of the floor and its danger to their dancers that they would not easily stand by in the knowledge that a danger existed. After all, the dancers are the assets of the company and it is unlikely that they would knowingly put them at risk.

20. I am therefore driven to the conclusion that there was nothing about this flooring which made it dangerous to the dancers at that time. If any slipperiness existed, it was within acceptable limits for the purpose to which it was put, and which the dancers themselves accepted and allowed for in their dancing. These were after all professionals, who expected to be treated as such, and to be left to make their own judgments as to how they prepared for their dancing, from the type of shoes they wore, to whether they needed rosin on them to give them more grip. In those circumstances, I am unable to find that the 1st defendant has acted in any way to allow practice room GR2 to become or remain unsafe, and I find that it is more likely that this accident occurred through a mistake or momentary inattention on the part of the plaintiff, whose claim against the 1st defendant must accordingly fail.

LIABILITY OF THE 2ND DEFENDANT

21. I am equally unable to find any ground upon which the 2nd defendant could be liable. Their duty as managers and occupiers of the Cultural Centre included arranging the cleaning and regular inspection of the condition of the rooms. As to the latter, this would include ensuring that the premises were reasonably safe for the users. However, in the case of GR2, the flooring had been supplied by the 1st defendant who had the skill and knowledge, upon which the 2nd defendant clearly relied, to decide on what was proper flooring for their purpose. And I am here concerned only with the purpose of the 1st defendant. Had another user been injured because the 2nd defendant allowed the 1st defendant to lay flooring unsuitable and dangerous for other purposes, then that would be another matter. Their inspections could not have gone beyond checking that the room was in a good state of repair, that fixtures and fittings were similarly in proper order, and that there was no obvious damage or danger to users. The specialist flooring was not a matter of which they were expected to have expert knowledge, or the degree of slipperiness which was appropriate for the main user, the 1st defendant. Indeed, for a number of other purposes the floor would have too much friction, as was demonstrated by the complaints from those who wished to use it, or a similar room, for ballroom dancing, or musical rehearsals, and who wanted only a polished wooden floor. Whether the floor was safe or not for the plaintiff was a matter solely within the knowledge and expertise of the 1st defendant, and I am unable to find any responsibility on the 2nd defendant beyond the regular inspections and cleaning that they are shown to have carried out. The fact that the 1st defendant managed to get them to pay for the renewed flooring in 1996 and again in 1999 takes the plaintiff's case no further. Although there is no explanation for this, it does not in my view assist the plaintiff in establishing any responsibility for the state of the floor, unless they had bought a product totally unsuitable and dangerous for the use to which they knew it would be put.

22. I would add that there is no suggestion that the alleged slipperiness was invisible to the naked eye, and it would be unreasonable to expect the 2nd defendant to carry out regular tests of the floor surface.

23. As to the cleaning, the evidence shows that this was done regularly, and with water only, of which there can be no complaint. There is no evidence that this accelerated the wear of the floor. I have had my attention drawn to a letter from a Ms Helen Ng of the 1st defendant to the 2nd defendant, dated 20 January 1999, in which she claimed that the floor was not maintained properly, and that continuous use and mopping shortened its life and made it stiff and slippery. Ms Ng was not called to give evidence, and it is not known where she got this information or as to its accuracy. It is a statement in a letter, unsupported by any other evidence, and does not take the matter any further.

24. I am accordingly also of the view that the plaintiff's claim against the 2nd defendant must also fail.

25. That is sufficient to dispose of the matters before me, but for the sake of completeness, and in the event of an appeal, I will look also at the question of quantum of damages I would have awarded if I had found either defendant liable.

QUANTUM

Pain suffering and loss of amenities.

26. The plaintiff was 22 years old at the date of the accident and an arthroscopy in February 1995 showed that she had suffered a partial tear of the anterior cruciate ligament of her left knee. An MRI in December 1995 showed that it had completely healed, although the 1st defendant's doctor, Dr. Julian Chang, seemed unaware of this in February 1996, when he recommended an operation for arthroscopic reconstruction of the ligament. This was not done, but she had a lengthy course of physiotherapy, although she was left with some weakness of her left knee, and she complains of pain on occasions particularly on walking for long distances, squatting and walking up and down stairs. However, it is clear from the report and video of an investigator who followed her over three days in October 1999, that she is, or was then, relatively unaffected in her day to day activities and walked for some distance and went up and down stairs apparently without difficulty. She has also returned to ballet teaching, principally to children, which I shall look at again when considering her present earning ability. She still has physiotherapy when she feels she needs it.

27. However, the greatest effect of the injury on her is the loss of her career as a ballet dancer. I accept that she had set her heart on this and wanted to progress as far as her abilities would take her. These abilities were canvassed at length in this trial and I do not propose here to repeat all the opinions given. Suffice it to say that I find that she was a competent dancer, well regarded enough to be offered second cast or cover roles in productions from time to time, with above average potential. However, even her own expert witness, Mr Zhao Ming, was unable to say she was exceptional. It is clear from the evidence I have heard that the extra spark needed to make a chance of progress to the top, and soloist and principal roles, a very good chance, was not evident in the plaintiff. She was clearly good, but not outstanding.

28. Having said that, ballet dancing was her life and she has lost a great deal more than someone who merely loses a job. I am entitled to reflect this in an award for pain suffering and loss of amenities. I accordingly consider a proper figure would be at the lower end of the serious injury category, but not at the lowest part of that range. Doing the best I can I put that figure at $450,000.00.

Loss of earnings

29. At the date of the accident the plaintiff was earning an average salary with the 1st defendant of $10,458.00 a month. However, her evidence is that she was also earning about $20,000.00 a month from working outside the company teaching ballet in the evenings and at weekends, except when they were rehearsing for performances, which, she says, was about 25% of the time, when she arranged for others to take her classes and receive the income. This gives an average of about $15,000.00 a month, and a total of $25,458.00 a month.

30. There are two reasons I cannot accept her evidence as to the sum for outside earnings. The first is that she has little evidence of these earnings apart from employment by the Scout Association which appears on her tax return, and a certificate from the Francesca Ballet School showing that she earned $1,400.00 a week from June to September 1994, when she had to stop because of her injury. The tax returns show a total of $36,480.00 from part time teaching for the year 1993/94, and $60,550.00 from the Scout Association for 1994/95. Taking the last figure together with the Ballet School earnings gives an average of about $10700.00 a month, which reduced by 25% to allow for rehearsal periods comes to $8,025.00 a month. A figure I will accept for the purposes of these proceedings.

31. The second reason I cannot totally accept her account of earnings is the nature of her work, as to which I accept the evidence of the defendants' witnesses that a dedicated, hard working member of the company, who seriously wished to progress, would not have the time to do very much work outside. Indeed, it is apparent that, after a full days strenuous work, it is unlikely that they would have sufficient energy to do very much outside. If the plaintiff's account is to be believed, she would be working part-time after hours and at weekends for 50 hours a month. I accept Mr Jeffries' evidence that this is not possible. It is for this reason, and because they want their dancers to devote all their energy to the work of the company, that they are specifically prohibited from such outside work by the terms of their contracts, although I accept that many do it, without seeking permission, as here.

32. I accordingly find that the plaintiff's monthly earnings at the time of the accident were an average of $18,483.00.

33. Had this accident not occurred, it is likely that she would have continued with the 1st defendant. A number of reasons were given as to why her contract was not renewed in June 1996, including her attitude to rehabilitation, with a view to her rejoining the corps de ballet, but I consider it likely that the major reason was the fact that they needed a full company of dancers totally able to take part, and as time passed the plaintiff looked less likely to do so. However, until then she was on full salary, which is shown in her tax return as $116568.00 for the year 1994/95, or $9714.00 a month, $136,114.00 for the year 1995/96, or $11,343.00 a month, and $81,793.00, including private work, for the year 1996/97.

34. What level she would have reached had the accident not occurred is more difficult to assess. I have no doubt that all professional ballet dancers, early in their careers, believe that they have the potential to rise to the top, and there is no doubt also that the plaintiff had the build and ability to go further. The opinions as to whether she would have risen far were mixed. Her expert, Mr Zhao Ming, although conceding she was not exceptional, said she had a good chance of progressing. He also admitted that there is an element of luck in being noticed and given the opportunity to improve and progress. Ms Serafinas was less enthusiastic. While some, she said, were totally dedicated and pushed themselves to succeed, the plaintiff did not seem of that type, and did not project personality on the stage, even when given opportunities to perform solo in small parts. She did not, as Ms Serafinas put it, have the spark in her eyes.

35. Doing the best I can on the evidence before me, I consider it likely that she would have progressed in time to at least level 5 in the corps de ballet, and possibly to coryphée. The earnings now for these ranks would range between $16,192.00 and $24,194.00 a month, and I assess her likely income from this at a median of these figures, namely $20,193.00 a month. In addition to this there may well have been some work outside teaching part-time, but, while this may have been easier for a middle-ranking corps de ballet, I cannot imagine there being much chance of it for a dedicated dancer, as the plaintiff claims to be, as she advances through the ranks. I do not consider that she would have earned more than $5,000.00 a month extra, giving a total of $25,193.00 a month. This would, on the evidence, have continued until she was about 32, when she would probably have taken up full time teaching.

36. I have heard from two witnesses who gave evidence as to what they earn from full-time ballet teaching, and I am bound to say I found that evidence unconvincing. One gave evidence of earnings of $50,000.00 to $60,000.00 a month, working 30 hours a week at $420.00 an hour, and another of between $40,000.00 to $50,000.00 a month working about 20 hours a week. Neither could produce any documentary evidence to substantiate these claims, either by way of tax returns, bank statements or records of pupils and hours worked. I can only therefore treat these as bare allegations. There is no doubt that they do earn reasonable sums from this business. The plaintiff says that she now earns over $13,000.00 in a full month and works about 24 hours, or about 6 hours a week. This works out to over $500.00 an hour, and on a full-time basis could produce the figures given. However, they all agreed that the work was seasonal, with more in the months running up to exams, less the rest of the year and affected by school holidays. On this evidence, I consider that a likely sum for earnings as a full-time teacher to be an average of $35,000.00 month.

37. The plaintiff's present earnings are not easy to calculate. There is no documentary evidence of earnings received, by way of tax returns or bank records, only certificates from some of the organisations for which she works. In her statement she claims earnings of $7,000.00 to $8,000.00 a month, but in cross-examination by Mr Sakhrani for the 2nd defendant, admitted up to $13,400.00. I think it likely that she can now earn an average of $10,000.00 a month.

38. Her loss of earnings pre-trial is accordingly as follows. For the period September 1994 to June 1996, on the basis that she was unable to continue her part-time teaching, $8,025.00 a month for 21 months: $168,525.00. For the period from June 1996 to the date of trial, taking a median of possible earnings had the accident not occurred of $21,838.00 ($18,843.00 + $25,193.00 ( 2), less her actual earnings of $10,000.00, for 67 months, produces a figure of $793,146.00, giving a total pre-trial of $961,671.00.

39. Her future loss of earnings would be $25,193.00 less $10,000.00 for the next three years until age 32, a total of $546,948.00 ($25,193.00 x 36 - $10,000.00 x 36), and $35,000.00 less $10,000.00 thereafter. I consider a multiplier of 14 is appropriate, which gives a figure for the remaining period of $3,300,000.00, and a total of $3,846,948.00.

Special damages

40. A total of $24,500.00 is claimed by way of medical expenses. Although these are not wholly supported by receipts or other documentary evidence, I do not consider the sum unreasonable in the circumstances and would have allowed it in full. Similarly, the travelling expenses claimed are within allowable limits and would also have been awarded. The plaintiff also claims the sums of $10,953.00 for piano lessons, and $6,220.00 for French lessons, both of which she says she pursued in an effort to widen the possibilities of employment and so maximize her income. Neither were successful in that she did not continue them to a sufficient standard to be of use in the way she intended. However, I accept that this was a serious attempt to mitigate her loss, and replace the income she had lost, and I would also have awarded these, giving a total of special damages of $51,103.00 as claimed in the schedule of damages.

Summary

Pain, suffering and loss of amenities	$ 450,000.00
Pre-trial loss of earnings	$ 961,671.00
Future loss	$ 3,846,948.00
Special damages	$ 51,103.00
	----------------
	$ 5,309,722.00

41. In addition there would have been interest on the usual terms. I have heard argument that this should be reduced because of the time taken for this matter to come to trial. While I agree that it has proceeded at a leisurely pace, including breach of at least one court order as to time for restoring the check list hearing, I do not consider that delay to be such as to penalize the plaintiff.

CONCLUSION

42. For the reasons above I find that no liability can be established against either of the defendants and the plaintiff's claim must be dismissed. There will also be an order nisi that the plaintiff pay the costs of the defendants to be taxed, including the costs of the 2nd defendant's notice of contribution and indemnity. The plaintiff's own costs will be taxed in accordance with Legal Aid Regulations.

Remarks: