Lai Tai Tai v. Lam Pak Lo and Another

1998 No. PI 683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

NO. 683 OF 1998

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Coram: Deputy Judge Chu in Court

Date of trial: 21st & 24th January 2000

Date of judgment: 3 February 2000

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JUDGMENT

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1. This action arises out of an accident which occurred to Ng Yea Mui alias Ng Kwai Kuen ("the deceased") while he was on board a sampan on the waters in Sai Kung area. The plaintiff, who is the wife of the deceased, commenced these proceedings on 30 June 1998 to claim damages against the 2 defendants in negligence and in breach of statutory duty. The defendants deny liability and aver that the plaintiff had been contributorily negligent. By a Notice filed on 17 September 1998, the 2nd defendant further claims contribution from the 1st defendant.

2. The 1st defendant was legally represented during most part of the proceedings, but became unrepresented shortly before the trial came on.

3. At the commencement of the trial, both liability and quantum were disputed by the defendants. On the second day of the trial, however, the parties reached an agreement on quantum and agreed that damages for the plaintiff, assuming a 100% liability, should be assessed at $590,000. The only issue for the trial is therefore liability.

THE FACTS

4. Much of the facts in this case is not in issue. It is common ground that at about 8:50p.m. on 22 July 1995, the 1st defendant was operating his junk, which was used as a pleasure vessel ("the Junk"). The Junk ran aground on a shoal to the east of Yeung Chau in Tso Wo Hang, Sai Kung, New Territories. The 1st defendant accepted that the Junk ran aground because he was not familiar with the waters in Sai Kung area, so that he was not aware of the presence of the shoal, and also because he was distracted by lights from nearby lamps.

5. Upon receiving report, the marine police came to assistance and conveyed the passengers on board the Junk to shore by means of the police vessels. The 1st defendant, his son and a crew member remained on the Junk. The 1st defendant was told by the marine police to drop anchor and to wait for the next high tide so that the Junk could be refloated. It is accepted that the next high tide for the area would have been at 5:53a.m. on 23 July 1995.

6. Meanwhile, the deceased, who was steering an open sampan ("the Sampan"), passed by the Junk. At the 1st defendant's request, the deceased used the Sampan to try to pull the Junk out of the shoal. It met with no success as the horsepower of the Sampan was not powerful enough for the task. The deceased then went to seek help from the 2nd defendant whose inboard motor cruiser ("the Cruiser") was nearby. The deceased together with the 2nd defendant, and joined by a Mr Lau Kam Cheung ("Lau"), went on board the Sampan to where the Junk was to assess the situation. The deceased perceived, with which the 2 defendants agreed, that the Junk would capsize if the water ebbed again. It was then decided that the Cruiser would try to tow the Junk out of the shoal.

7. The deceased, the 2nd defendant and Lau then returned to where the Cruiser was to fetch a hawser for tying the Junk to the Cruiser. The 2nd defendant went on board the Cruiser and properly tied one end of the hawser, which was about 50 metres long, ("D2's hawser") to the bow of the Cruiser. The deceased and Lau remained on the Sampan.

8. D2's hawser was not long enough to be connected to the Junk. The 1st defendant then produced an orange hawser ("the orange hawser") from the Junk. The orange hawser was properly tied to D2's hawser. D2's hawser, as extended by the orange hawser, was still not long enough and a third hawser was required. The only hawser available was a white hawser, of which one end was connected to the anchor of the Junk ("the white hawser"). Accordingly, the anchor was lifted from the sea and placed on board the Junk. The deceased properly tied the free end of the white hawser to the free end of the orange hawser. It is the 1st defendant's evidence that the deceased told him to properly tie the white hawser to the Junk. The 1st defendant wrapped the white hawser round the bollard of the Junk four times, with the anchor remained connected to it.

9. In the meantime, the deceased steered the Sampan to the starboard side of the Cruiser. The 2nd defendant, in his statement to the police given shortly after the accident, stated that he had asked the deceased to steer the Sampan to that position as he was afraid that vessels might approach from that side. Although the 2nd defendant had not given evidence at the trial, this statement was admitted as an agreed document. The 2nd defendant had also pleaded in his Amended Defence that he had asked the deceased to position the Sampan to the starboard side of the Cruiser "so as to caution other ships heading towards the vicinity of the salvage operation" (paragraph 5(vi)).

10. After the Sampan was so positioned, Lau gave a signal to the 2nd Defendant by rotating a lit up torch. The 2nd defendant started the engine of the Cruiser and put it on the reverse very carefully. He stopped the engine when he saw D2's hawser, as extended by the orange and white hawsers, (collectively referred to as "the hawsers") move. At that point, the Sampan was about 20 feet from the Junk and the Cruiser was about 130 feet from the Junk.

11. Moments later, he started the engine and reversed the Cruiser again. The white hawser came free. Together with the anchor, it was pulled by and towards the Cruiser and across the Sampan at high speed. The anchor struck the deceased and Lau. The deceased was knocked overboard. The 1st defendant jumped into the water and helped the deceased onto the Sampan. The deceased lost consciousness. He suffered multiple abrasions on the right lower chest, right upper back and lacerations on the front and back of the right lower arm and behind the left ear. He died before arrival at the Prince of Wales Hospital. The cause of death was drowning.

12. Such are the undisputed facts. The facts which are in dispute relate to the circumstances surrounding the tying of the white hawser to the Junk.

13. It is the evidence of Lau, who was called as a witness for the plaintiff, that the deceased had asked people on board the Junk to properly tie the white hawser to the Junk. Later the deceased asked the people on the Junk whether it was ready. Someone from the Junk replied "ready'. The deceased then steered the Sampan away for about 20 feet so as to be at the starboard side of the Cruiser. The deceased then told him to give the torch signal to the Cruiser, which he did. By then, the hawsers had already straightened.

14. The 1st defendant denied that someone from the Junk had replied "ready". His evidence is that he had agreed with the deceased that when he had properly secured the white hawser, he would give a torch signal to the deceased and the towing operation would only commence thereafter. He said that he had intended to disconnect the anchor from the white hawser. As he was wrapping the white hawser round the bollard, his son and his other crew member were trying to untie the anchor. Before the anchor had been disconnected, however, the Cruiser had already begun to reverse.

15. The 1st defendant's son, Lam King Leung, had also given evidence. He is now 19, but 14 years old at the time of the accident. He stated that his father had told the deceased that he would give a torch signal when they were ready, meaning when the anchor was disconnected and the white hawser properly tied to the Junk. He said when he was disconnecting the anchor from the white hawser, he heard his father shout to him to get running. He ran away and later he knew that the anchor had been pulled out of the Junk.

16. I am of the view that the version of events as related by Lau is to be preferred to that of the 1st defendant and his son. In coming to this conclusion, I am conscious of the fact that Lau and the deceased were good friends. Nevertheless, Lau appears to me to be an objective witness. His evidence in court is consistent with his description of the events in his statements to the police as well as in his report to the Marine Department.

17. On the other hand, the 1st defendant never mentioned in his statements to the police the agreement with the deceased that he were to give a torch signal when he was ready. Even when he gave the report to the Marine Department, he only mentioned that the deceased told him to tie the white hawser properly to the front of the Junk, and the deceased then wielded the torch to signal to the Cruiser. To my mind, the alleged agreement with the deceased is such a crucial episode in the events preceding the accident that it is improbable that the 1st defendant would have forgotten or omitted to mention when he was interviewed by the police or marine officers. Indeed, the 1st defendant said he had mentioned this to the interviewing officers, but somehow it was not recorded in the statements and report. I am unable to accept this. This is an important part of the events. It is unlikely that an interviewing police or marine officer would omit to record it in the statements. Even if he had, there is no reason why the 1st defendant did not notice it nor ask the officer to add it to the statement. The 1st defendant accepted that the statements had been read to and/or by him and he had been told that he could add or alter the contents. The fact that the statements and report made no reference to the alleged agreement about the giving of signal is indicative of the fact that there was in fact no such agreement.

18. As to the 1st defendant's son, I have grave reservations whether he had any independent recollection of the details of the accident, especially the conversation between his father and the deceased. He was a young boy at the time of the accident, and probably because of that, he was not interviewed by the police and marine officers. The first time he had to recall the details of the incident was when he was asked by his father's former solicitors to give a witness statement in April 1999, nearly 4 years later. He was adamant that he never discussed the incident with his father prior to his being interviewed by the solicitors. While I accept that an accident of the kind would probably leave a strong mark on his memory, I am not prepared to accept that he would be able to recall the details of the conversation his father had with the deceased, bearing in mind his young age, the shock brought upon him by the accident and the fact that he had nothing to turn to for refreshing his memory.

19. I find as a fact that after the anchor connected to the white hawser was lifted from the sea and after the other end of the white hawser was tied to the orange hawser, the deceased had asked the people on board the Junk whether it was ready. Someone from the Junk replied "ready". It was then that the deceased steered the Sampan away to the starboard side of the Cruiser, to be positioned between it and the Junk. Lau then signalled to the 2nd defendant with a torch. The towing operation then began.

20. The 1st defendant had testified that the towing operation began when his son and the other member of his crew were in the course of disconnecting the anchor from the white hawser and before there was sufficient time for the disconnection to be completed. I do not accept this part of his evidence. Again, he never mentioned this in his statements and report. Quite the contrary, in his second statement to the police given on 17 August 1995, in answer to a question as to what were his son and the other crew member doing, he replied that they were standing near the bollard and were not assisting him. Further, it is Lau's evidence that the deceased had steered the Sampan away for some 20 feet before he gave the signal. By then the hawsers had straightened which is indicative of the white hawser already being tied to the bollard of the Junk. There should have been enough time for the anchor to be disconnected at the same time when the white hawser was being wrapped round the bollard. If disconnecting the anchor from the white hawser requires a long time to be accomplished because it is a complicated or difficult task, then it is inherently improbable that the 1st defendant would leave it to his 14 years old son. It would have been more logical for him to untie the anchor while his son or the other crew member wrapped the white hawser round the bollard.

THE 1ST DEFENDANT'S LIABILITY TO THE DECEASED

21. The starting point is whether the 1st defendant owes any duty of care to the deceased, a rescuer. Mr Ismail had referred me to the case of Carparo Industries Plc. v. Dickman [1990] 2AC 605 in which the House of Lords observed (at pp. 617H - 618B) that :

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a duty a relationship characterized by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other."

22. In the context of a rescuer, Boreham J. held in Harrison v. British Railways Board [1981] 3All ER 679 (at pp. 684-5) that a duty may be owed to a rescuer by the one being rescued if the latter, by lack of reasonable care for his own safety, creates a dangerous situation which invites rescue and that he ought, as a reasonable man, to have foreseen the likelihood of intervention by a rescuer.

23. In this case, admittedly the Junk ran aground because of the 1st defendant's failure to detect the shoal due partly to the fact that he was not familiar with the waters of Sai Kung and partly to the fact that he was distracted by lights from nearby lamps. Clearly, the 1st defendant by his own fault and lack of care had put the Junk, himself and other persons on board the Junk into perils. It may be that there was no immediate danger for, if it were otherwise, the marine police would have taken emergency action to rescue the Junk. That, however, is immaterial because both the 1st defendant and Lau agreed with the deceased's perception at the time that the Junk would capsize if the water ebbed again. A situation of danger, albeit may not be imminent, did exist.

24. There can be no doubt that intervention by a rescuer like the deceased is reasonably foreseeable. As a matter of fact, it was the 1st defendant who requested the deceased to render assistance when the deceased first went past in the Sampan.

25. In the course of his evidence, the 1st defendant had repeatedly described himself as a "marine man", meaning one who lives on and/or makes a living from the sea. According to him, he had previous experience of salvaging vessel(s). It follows that it must be within the 1st defendant's reasonable contemplation that some form of injury would occur to the deceased if the rescue operation was not carried out with care or properly.

26. Further, given that the deceased was a volunteer coming to the aid of the 1st defendant on the latter's request, it is only just and reasonable that liability should attach. On the basis of the 3 elements identified in the case of Carparo Industries Plc. v. Dickman, supra, and having regard to the case of Harrison v. British Railways Board, supra, I am satisfied and I hold that a duty of care is owed by the 1st defendant to the deceased.

27. On the facts of this case as found, it is clear that the 1st defendant was in breach of his duty of care to the deceased in a number of ways. Firstly, he was negligent in not disconnecting the anchor from the white hawser before the towing operation commenced. Had the anchor been disconnected, the deceased would not be struck by it and would probably not fall overboard when the white hawser came loose. Secondly, he ought to have properly secured the white hawser to the bollard by, for example, tying a knot. As the 1st defendant accepted in cross-examination, wrapping the white hawser round the bollard 4 times, as he did, was not good enough. The 1st defendant had, of course, said that there was insufficient time for him to untie the anchor and then to tie a knot, a suggestion which I had rejected for reasons given above. It is plain from Lau's evidence that there was ample time for the anchor to be untied and for the white hawser to be properly secured to the Junk. Thirdly, the 1st defendant ought not to have replied to the deceased that it was ready or allowed the reply to be given, when it was not ready as the anchor was not untied and the white hawser not properly secured in place. Fourthly and alternatively, he ought to have ensured that the anchor had been disconnected and the white hawser properly secured to the bollard before the reply was given to the deceased.

28. It is to be noted that the 1st defendant, in the course of his final submission, did not deny that he should assume responsibility for the accident and the death of the deceased. He merely submitted that the 2nd defendant and the deceased were also responsible for the same.

29. In short, I find that the 1st defendant had acted in breach of his duty of care to the deceased and is therefore liable to the plaintiff.

THE 2ND DEFENDANT'S LIABILITY TO THE DECEASED

30. The 2nd defendant's position is not quite the same as the 1st defendant in that he was not the author of the situation of danger and that he was a co-rescuer coming to the 1st defendant's aid on the deceased's request. The first question one has to ask is whether any duty of care is owed by him to the deceased.

31. It is stated in 33 Halsbury's Laws of England 4th edition (Re-issue) para. 609 that ; "A rescuer may also have a claim against another who unsuccessfully attempts rescue if that has led to an increased danger." In the case of Horsley v. MacLaren (The "Ogopogo") [1971] 2 Lloyd's Rep 410, the Canadian Supreme Court has to consider the liability of one rescuer, who had attempted rescue unsuccessfully, to a subsequent rescuer. Ritchie J., delivering the majority judgment of the court, observed (at pp. 411-2) that before the first rescuer can be found liable for the death of the second rescuer, it must be shown that the first rescuer had by his negligence aggravated the situation of peril or had created a new situation of peril. Laskin J., though dissenting from the majority judgment, was of a similar opinion on this point. He said at p.418 that :

"The thinking behind the rescue cases, in so far as they have translated a moral impulse into a legally protected interest, suggests that liability to a rescuer should not depend on whether there was original negligence which created the peril and which, therefore, prompted the rescue effort. It would appear that the principle should be equally applicable if, at any stage of the perilous situation, there was negligence on the defendant's part which induced the rescuer to attempt the rescue or which operated against him after he had made the attempt. If this be so, it indicates the possibility of an action by a second rescuer against a first."

32. It can be seen from these authorities that it is possible for one rescuer to owe a duty of care to another rescuer, even though the situation of danger is not created by the first rescuer. And if the first rescuer, through negligence on his part, created further or new situation of danger, which caused harm to the second rescuer, then he is liable to the other rescuer.

33. Applying the principles to this case, it is immaterial that the 2nd defendant did not create the initial situation of danger. The relevant question is whether there was any negligence in the method of rescue adopted by the 2nd defendant that placed the deceased in a position of increased danger. Being co-rescuers, it must be within the reasonable contemplation of the 2nd defendant that if he did not carry out the towing operation with care, the deceased would be exposed to increased danger. It matters not that the deceased was, as suggested by Mr. Wong for the 2nd defendant, the organizer or person in charge of the towing or that, as Lau said, it was not up to the 2nd defendant to say anything in respect of the operation. The fact remains that the deceased, the 2nd defendant and also the 1st defendant were partners in a joint effort to salvage the Junk. It is all too obvious that the lack of care by any party to the rescue will adversely affect the other parties to the rescue.

34. Further, it is not disputed by the 2nd defendant that he had asked the deceased to steer the Sampan to the starboard side of the Cruiser so as to caution other vessels which might approach from that direction. As a result, the Sampan and the deceased came to be in the flight path of the anchor when the white hawser to which it was tied came loose. In the circumstances, it is fair and reasonable that the 2nd defendant be held to owe a duty of care to the deceased.

35. On the issue of whether the 2nd defendant is negligent, Mr Wong referred to several passages in Kennedy's Law of Salvage (5th edn) on what constitutes negligence on the part of a salvor. The passages bear remote relevance to the present action. The discussions there are in the context of salvage services rendered by individual salvor. The 2nd defendant was not performing salvage services, he was a volunteer coming to the aid of the 1st defendant. His case cannot be considered in the context of the passages cited in Kennedy's.

36. The 2nd defendant is, in my view, clearly in breach of the duty of care he owed to the deceased by asking the deceased to steer the Sampan to the starboard side of the Cruiser. For one thing, the Sampan came to be between the Junk and the Cruiser and therefore could easily collide with or bump into the Junk as the towing proceeded and the Junk being pulled towards the Cruiser. Secondly, if indeed there were vessels approaching from that direction, as the 2nd defendant feared, it would hit or collide with the Sampan. Thirdly, as pointed out by Mr Ismail, the Sampan was not properly equipped to act as what he termed as a "beacon" vessel. It was small, unlit and had no navigation lights nor ship's horn. Quite clearly, the 2nd defendant had exposed the deceased to increased danger by asking him to steer the Sampan to the starboard side of the Cruiser.

37. The 2nd defendant ought to have asked the deceased to steer the Sampan away from the vicinity of the towing operation and, in any case, to be clear of the path between the Junk and the Cruiser. On the facts of the case, there is no necessity for the Sampan to be nearby when the towing operation commenced. The 2nd defendant had failed to have regard for the safety of the Sampan and those on it, including the deceased, by not ensuring that the Sampan stayed away from the vicinity of the Junk and the Cruiser before he started with the towing operation. The 2nd defendant is therefore liable to the plaintiff in negligence.

BREACH OF STATUTORY DUTY

38. The plaintiff also relies on breach of statutory duty as a basis for claiming against the 2nd defendant. The plaintiff contends that the 2nd defendant is in breach of Regulation 37, Merchant Shipping (Miscellaneous Crafts) Regulations, cap. 313. Regulation 37 prohibits a master of a vessel from using or allowing his vessel to be used for towing another vessel unless "such towing is undertaken in order to save the other vessel or her crew from danger". The plaintiff argues that there was no actual nor immediate danger given that there was no injured person on board the Junk and., according to the advice of the marine police, the next high tide could have refloated the Junk.

39. The wording of Regulation 37 does not restrict the exception to actual or immediate danger. In the absence of express wording, it is capable of extending to situation where danger is reasonable perceived by the master of the vessel. The evidence adduced in this case shows that all parties involved in the towing operation agreed at the time that the Junk might capsize if the water ebbed again. The Junk was perceived to be in danger and that the towing operation could save it from the danger. There is no evidence to suggest that this apprehension of danger was erroneous or unjustified. This is particularly so having regard to the fact that the deceased, being an experienced and well respected seaman, was the first to observe that the Junk might capsize, hence in a situation of danger. I do not consider that the plaintiff has made out a case against the 2nd defendant for breach of Regulation 37, and for being liable for breach of statutory duty.

CONTRIBUTORY NEGLGIENCE

40. Both defendants had pleaded contributory negligence on the part of the deceased. For the 1st defendant, the allegation as particularized under paragraph 14 of the Amended Defence rests mainly on 3 areas : firstly, failing to ensure that the 1st defendant was ready before the towing began, secondly, failing to safeguard his own safety and to heed the movement of the hawsers and thirdly, moving the Sampan to be positioned in between the Junk and the Cruiser. The 1st defendant in his final submission also stated that the deceased should have moved the Sampan away after the hawsers were properly tied together. For the 2nd defendant, the allegation as particularized under paragraph 8(iii) of the Amended Defence is similar to that pleaded by the 1st defendant. In addition, the 2nd defendant also refers to the deceased's failure to ensure that the 1st defendant had properly secured the white hawser to the bollard of he Junk.

41. In Harrison v. British Railways Board, supra, Boreham J. commented that it is rarely appropriate to find a rescuer guilty of contributory negligent for things he did in the course of the actual rescue. In Baker v. T.E. Hopkins & Son Ltd [1959] 1WLR 966, the English Court of Appeal had to consider whether a rescuer should be held contributorily negligent for his death. Wilmer L.J. stated (at p.984) that in order to succeed on the plea of contributory negligence, it has to be shown that the conduct of the deceased rescuer was so foolhardy as to amount to a wholly unreasonable disregard for his own safety. Mr Wong for the 2nd defendant does not take issue with these observation and statement of law.

42. I have found that there was no agreement between the deceased and the 1st defendant about the giving of torch signal by the 1st defendant when he was ready. I have also found that the deceased had enquired with people on the Junk whether they were ready and was given a positive reply, before Lau signalled to the 2nd defendant. It follows that there is no room for the allegation that the deceased was negligent in not ensuring that 1st defendant was ready and/or that the white hawser was properly secured to the bollard to the Junk before signalling to the 2nd defendant or before the towing began.

43. There is equally no room for the allegation that the deceased ought not to have steered the Sampan to a position in between the Junk and the Cruiser. The fact, which is uncontroverted, is that the deceased steered the Sampan to that position on the request of the 2nd defendant.

44. The remaining issue is whether the deceased ought to have ignored the request of the 2nd defendant and should have steered the Sampan away from the vicinity of the towing operation, whether by not so doing, he had "wholly unreasonable disregard for his own safety". In my view, despite that he was an experienced seaman, in agreeing to be at the starboard side of the Cruiser, the deceased had not acted with wanton disregard of his own safety. It is common ground that the deceased had told or reminded the 1st defendant to properly tie the white hawser to the Junk. I have found that the towing only commenced after someone from the Junk had replied to the deceased that it was ready. In the circumstances, the deceased could not reasonably foresee that the white hawser was in fact not properly secured and the anchor not disconnected from it. Accordingly, it cannot be said that the deceased's conduct was a foolhardy one as to constitute contributory negligence on his part.

45. In short, I find the deceased not guilty of any contributory negligence.

APPORTIONMENT OF LIABILITY BETWEEN THE DEFENDANTS

46. As a result of the Notice of Contribution filed by the 2nd defendant, seeking contribution from the 1st defendant, it becomes necessary to apportion the liability between the 2 defendants.

47. Mr Wong had submitted that the 1st defendant should be fixed 100% liability. I do not agree. The direction of the 2nd defendant with respect to the positioning of the Sampan is one of the direct causes of the accident, hence the deceased's death. Had the Sampan not been positioned in the direct flight path of the anchor, the deceased might not be struck and the accident would probably not happen, even if the white hawser with the anchor tied to it came loose.

48. On the basis of the particulars of negligence I found against the 2 defendants, I consider that the 1st defendant is more to be blamed for the death of the deceased. The 1st defendant was the author of the situation of peril which invited the rescue. The deceased became involved in the attempt to rescue as a result of his request for aid. His failure to properly secure the white hawser and to untie the anchor from it is the immediate and a primary cause of the accident. By contrast, the 2nd defendant, in asking the deceased to position the Sampan to the starboard side of the Cruiser, is less to be blamed. I apportion the liability between the 1st and 2nd defendants in the ratio of 60 : 40.

QUANTUM

49. As agreed between the 3 parties, the amount of damages to be awarded to the plaintiff is $590,000, now that I have found no contributory negligence on the deceased's part.

50. As 2 of the dependants, Ng Tik Chong and Ng Sau Yu, are minors, the damages awarded has to be apportioned. I had been informed by counsel that the amount of $590,000 was agreed between the parties after certain adjustments to the calculations set out in the Revised Statement of Claim. I am, however, not appraised of the details of these adjustments. In the circumstances, the court is not in a position to say what part of the award is to be apportioned to the 2 minors. I shall give the plaintiff liberty to apply in respect of the amounts to be apportioned to the 2 minors and for other ancillary directions. In the meantime, the judgment sum is to be paid into and held by the Court pending these directions.

COSTS

51. As costs should follow event, the plaintiff should have her costs against the defendants. Since I have apportioned the liability of the 1st and 2nd defendant in the ratio of 60 : 40, the 1st defendant should bear 60% of the plaintiff's costs whereas the 2nd defendant should bear 40% of the plaintiff's costs. There shall be an order nisi to this effect. This order nisi is to be made absolute after the expiration of 14 days from the date of this Judgment.

CONCLUSION

52. To conclude, the orders I make are as follows :-

Representation:

Mr A. Ismail, instructed by Messrs. Szwina S.K. Pang & Co., for the plaintiff.

The 1st defendant in person.

Mr C.K. Wong, instructed by Messrs. Ng & Partners, for the 2nd defendant.