Thapa Surendra v. E W Cox Hong Kong Ltd and Another

HCPI 451/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 451 OF 2009

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BETWEEN

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Before : Deputy High Court Judge Seagroatt in Court

Dates of Hearing : 21-24 June 2011

Date of Judgment : 11 July 2011

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J U D G M E N T

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1.On 23 May 2005, now six years ago, the plaintiff, a Nepali Gurkha window-cleaner, employed by the 1^st defendant, suffered a back injury whilst lifting a container of water up to his co-worker who was standing inside the gondola used to clean windows of the Lucky Building in Wellington Street, Hong Kong.

2.He was on the 26^th floor, the top floor of the building, where there is a track for the gondola and the counter weight and jib which move the gondola’s position laterally and horizontally to enable the window-cleaning to be carried out.  This is no doubt an arrangement common to so many tall buildings in Hong Kong where one sees, on a daily basis, this work being carried out.

3.The system he followed on that day was to lower the water container, which is not a purpose-built receptacle but appears to be the main part of a rubbish swing bin, by means of a rope, into a kind of well on the roof, which has a metal cover.  This is clearly shown in the photographs of the roof top.  The exercise of filling the container with water and detergent had to be carried out twice a day.

4.The container is approximately 47 cm high, 29 cm wide, and 37 cm long.  The photographs of this receptacle are at page 618 of the bundle.  Inside this container are impressed marks, obviously made in the course of manufacture, showing levels of 30 and 40 litres.  There are two holes on one side through which the rope is passed. It was then immersed into the water in the roof-top well and then drawn up when sufficient water had been judged to be in it.  Detergent is added.  The container is then carried or manoeuvred across the roof to the nearest point to the gondola.  It entails the container being lifted over the track, which is like a substantial girder.  The plaintiff was performing this action by himself.

5.Once he had reached the gondola he had to pass the container of water up to his co-worker inside the gondola.  It is important to bear in mind that this is a rigid bulky container.  It had between 30 and 40 litres (30 to 40 kilogramme in weight—66 to 88 lbs) and water is a readily movable and unbalancing element in a container.  In order to reach his co-worker who was standing in the gondola, the base of which was 58 cm above the roof ground level, and the sides of which were 1 metre high, he had to raise it quite high.  The co-worker was elevated higher than the plaintiff who could not get into a position wholly in contact with the gondola because a concrete block and the track or girder on which it rested, prevented him from doing so.  His first stage after moving the container across the roof to the site of the gondola was to lift it onto the concrete block, not itself a safe base for the loaded container as it had five bolts projecting vertically from the top of the concrete.  He therefore had to raise the container to a level at which the top was roughly at his upper chest or shoulder level and he had to lean forward to bring the container close enough for his co-worker to take hold of it.  This was obviously, and it was apparent to anyone who was able to lift the full container to upper chest level, going to be a significant strain on the back, and, as long term experience shows, on the lumbar region. The weight was far in excess of any of the recommendations of Health and Safety advice over many years.  Quite apart from official recommendations and advice, the weight alone in that form, never mind the later upper body transfer, was beyond safe and sensible lifting. 

6.As first it appeared that the defendant would contend that the system was devised by the plaintiff and that he had, at the very least, contributed to his misfortune.  However when the defendant’s supervisor gave evidence any basic for criticism of the plaintiff disappeared.  There had been at least three varying systems of getting water into the gondola prior to the accident.  The plaintiff had already given evidence as to these and there was little variation between his evidence and that of Mr Gurung Thakar Prasad, the supervisor, who was not however the supervisor at the material time.

THE FIRST SYSTEM

7.Since the window-cleaners were largely left to their own devices when it came to selecting the source of water and the means of transporting it to the gondola, “system” is perhaps something of a euphemism.

8.Initially water was obtained from the tap supply in a washbasin in the men’s lavatory or cloakroom on the 23^rd floor. Water was either scooped or baled by means of a small utensil directly from the tap into the grey container (D1).  Sometimes a hose or rubber pipe, about 30-36 inches long, was used to feed the water from the tap to the container.  This was then carried by the two workers into the lift and transported to the 25^th floor.  It was then manhandled by both of them onto the open area which is almost like a large balcony.  Then again both of them, or only one, would drag or push the container across the floor, an area made somewhat hazardous by raised drainage covers, which they had to circumnavigate to avoid tripping.  Once the balustrade was reached either both or one of them would lift the container onto the ledge.  The gondola had been lowered from the 26^th floor (the roof level) and was positioned outside the left side of the balustrade.  One of them, usually the plaintiff’s co-worker, would get into the gondola and the container of water would somehow be lifted off the ledge and positioned in the gondola.

9.This method was soon changed in a material respect.  Other workers in the building complained, not surprisingly, that the lift floor and no doubt its immediate vicinity, was slippery and unsafe because of the spillage of soapy water.  The plaintiff and his co-worker were told by their supervisor to cease using the lift.  The two window-cleaners then had to carry the water side by side up the stairs to the 25^th floor, occasionally changing positions so as to use the other hand and sometimes one of them preceded the other, carrying the container in single file, more or less.  One can readily imagine how awkward a maneuvre this must have been.  Once they had reached the 25^th level they adopted the same technique to get the container up to the balustrade and then into the gondola.

10.This was a patently unsafe system.  There was a risk of injury or strain in getting the container up the stairs, and of slipping or falling, and, if it was left to one worker to lift 30-40 litres of water in that rigid container from the floor to the ledge, there was a foreseeable risk of injury or strain to him.

THE SECOND SYSTEM

11.The use of the water source on the 23^rd floor was eventually abandoned.  What was then adopted was the use of a source of water on the 25^th floor in the form of the air-conditioning water-tank to the left of the entrance onto that level as one emerged onto it. The simple instruction from the then supervisor to the plaintiff was that if water was found in the air-conditioning tank it was to be used.  The plaintiff recalls obtaining water from this tank only once and that involved his co-worker immersing the container in the tank and then lifting it up, two handed.  Again although this was not demonstrated it was not a safe system to require a worker to lift a container of 30-40 litres of water in that fashion.  Moreover the floor area where he would have had to stand has a number of pipes on or just above it.  On other occasions when the lid of the tank was lifted there was no water, or an insufficient amount inside. 

12.It was apparent from Mr Clough’s cross-examination of the plaintiff on this “system” that his (Mr Clough’s) instructions were to the effect that what appears to be a short projecting drainage pipe, located a few inches above the base of the tank, was available and should have been used as a supply tap with some form of hose running from it to the water-container.  This suggestion appeared to surprise the plaintiff who was unsure whether it was even in situ at the material time. 

13.What put the notion to bed was Gurung Prasad’s statement that what was available as a water source was a tap of some kind at the base of the vertical white pipe shown in the upper photograph on page 624.  He knew nothing of the relevance of the projecting pipe and tap relied upon by Mr Clough.

14.Mr Gurung Prasad said that there was a short hose or pipe, about 3 feet in length, which could be used to feed the water into the container.  The water container would then have to be pushed/pulled across the floor to the gondola outside and then lifted onto the ledge.  It is clear that the hose would not be long enough to feed water into the container if the gondola were to be positioned alongside the air-conditioning tank with the container inside the gondola.  If that short hose were used to fill the container before the latter was put inside the gondola, the carrying of the container over the pipes by one or two men, and then the lifting of the container on to the ledge, constituted an obviously unsafe place of work as well as an unsafe system of work.

THE THIRD SYSTEM

15.This involved bringing water on to the rooftop (26^th floor).  According to Mr Gurung Prasad, an ordinary bucket was filled with water from the tap he described on the 25^th floor (i.e. at the base of the white vertical pipe) using the short hose.  The bucket was then carried to the base of the cat ladder which links the 25^th and 26^th floors.  One worker was then at the bottom and the other at the top of the cat ladder (i.e. on the 26^th floor).  Using a rope, the bucket of water was then hauled up alongside the cat ladder, and, when it reached the top it was emptied into the container which was positioned alongside the hatch opening which gave access to the cat ladder.  This process was repeated until the container had sufficient water to do the work.  The worker at the bottom then climbed up the cat ladder to the 26^th floor and the two of them would then manhandle the container across the roof over the tracks, until they reached the gondola.  Then one of them would get into the gondola and the other would lift the container of water up to chest or shoulder height for him to take inside the gondola.  The lifting exercise involving that 30‑litre weight in that shaped container, was as risky in terms of strain and pressure as in the other exercises.

THE CURRENT SYSTEM

16.Mr Gurung Prasad acknowledged the difficulties in getting water onto the top floor. There was no tap there.  It is clear from what he said that it was regarded as quicker to get water onto the top floor as it was not then necessary to move the gondola.  At some stage in the past few years and since the plaintiff’s accident, some employee had hit upon the bright idea of using a longer hose to feed water into the container already situated in the gondola.  This was now the system in use although it was not clear whether that involved feeding the hose up the catwalk to the gondola on the top floor or moving the gondola down to the 25^th floor.  Whichever the case, it eliminated the need for anyone to lift such a weight and such a bulk in order to get it into the gondola.  The current method was obviously a safer system and was itself an obvious method years ago.  No one told the plaintiff to adopt that.

THE EMPLOYER’S DUTY OF CARE

17.This has been so well-rehearsed in all the leading authorities that it is not necessary for me to identity them and extract pithy and commonsense statements.  A safe place of work, safe access to it and a safe system of work need to be established.  The duty of care is a reasonable one.  True it is that hindsight can often show that systems could be improved and working areas made safer.  But where an injury or unnecessary risk is clearly foreseeable all reasonable steps must be taken to eliminate the injury or risk.  In industrial work involving essentially manual labour it is not possible to eliminate every risk.  Much depends on the operator’s level of intelligence and his own degree of care.  But if an employer leaves his employees to search around to see what means, equipment or material exist on a site to carry out a job, and devise their own means to achieve that end, without proper direction or supervision, then he has neglected this duty of care.  Arrangements for the supply and transport of water to the container and of the container to the gondola were haphazard to say the least.

18.There does not seem to have been a proper assessment by the employer of how best to obtain a supply of water.  It seems to have been limited to a suggestion that water from the cloakroom sink taps should be used.  Thereafter the employees were left to improvise as best they could.  No thought was applied to the system involving the transfer of the container safely to the gondola.  Apparently the defendant’s workers have C.I.T.C. (Construction Industry Training Centre) cards following a one-day training course which included instruction on how to lift heavy weights.  The point in this case is not how the plaintiff positioned himself to lift the container but the fact that he had to lift it, an excessive weight, to a height which involved for him an obvious risk of injury to his back, in those circumstances and conditions.

19.The employers were clearly negligent in their approach to this exercise and in breach of their common law duty of care.

CONTRIBUTORY NEGLIGENCE

20.I find no evidence of such.  After Mr Gurung Prasad’s evidence, Mr Clough appeared not to pursue this but dealt with it in his final written submissions.  Although clearly an employee in these circumstances has a duty to exercise reasonable care for his own safety, this plaintiff, though the senior of the two men working on this job, cannot be criticised for not being the one who devised the current safe practice.  He did not even know of the source of water on the 25^th floor (identified by Mr Gurung Prasad) and his use of the tank holding water on the top floor was eminently reasonable.  It was quicker and eliminated some of the problems encountered in all the other ad hoc systems devised.  But he was still left with the ultimate hazard which was common to all the systems, namely, when he was on his own, getting the loaded container up to a sufficient height to enable his work colleague to take hold of it.  In my judgment the plaintiff cannot be faulted.

DAMAGES

Pain and suffering and loss of amenity

21.After feeling the “click” in his back, the plaintiff had to go back down the cat ladder (incidentally a means of access to the roof which should not be regarded as safe and can clearly be improved upon) and slipped or fell some distance.  This caused further pain to his back and may have aggravated the situation.  He rested on the 25^th floor and then went to hospital.

22.At this stage it is necessary to deal with the accident he suffered in the course of his employment with these defendants on 29 March only two months before this back injury.  He was manoeuvring a trolley on which was loaded a concrete block of about 40–50 kilogrammes.  He and another worker had placed it on the trolley.  The plaintiff said that a wheel broke on the trolley and the block slipped off partly.  He lifted it back on and in so doing hurt the base of his spine.  He was told to cease work for that day.

23.He went to Ruttonjee Hospital on the next day.  It is important to note what the hospital records show in relation to diagnosis and treatment of this injury in the light of what the two orthopedic consultants say about its relationship with the injury suffered on 23^rd May 2005.

24.The only report available from Ruttonjee Hospital concerning the earlier back injury is dated 2 April 2005.  The earlier ones are either missing or have not been supplied.  Alternatively it may be that the plaintiff is mistaken and did not attend hospital until 2 April 2005.  The record says :

“Lower back pain since 28/3.

? sprain injury.”

An x-ray of the lumbar 5 region of the spine was taken but no radiologist’s report was obtained. On clinical examination power, reflexes and straight leg raising were normal, and equal. He was given a sick leave certificate for three days. Although he was back at the hospital on 12 and 14 May, over five weeks later, it was not for any back problem. It is of interest to note that on the record for a hospital attendance on 18 July 2004 is stated : “Language barrier. Friend as translator.”

25.Nonetheless he returned to work having suffered a back injury from which he seemed to have recovered well, but with some pain persisting.  His employer knew that he had suffered some back injury from lifting a heavy weight and therefore the onus was upon them to ensure that he was not exposed to the type of work which could revive or exacerbate a problem.  Initially they put him on light work and then back on his normal work.  That as I have said, carried with it an unnecessary and entirely foreseeable risk of further injury.  They were therefore negligent in respect of not ensuring that after he returned to normal work, there was nothing in the system which constituted a particular hazard.

26.I now turn to the medical position after the injury on 23 May 2005.  There are a series of medical certificates dating from 27 May 2005 which ought helpfully have been incorporated in chronological order into a single document showing the overall picture.  These support sick leave identifying lifting low back pain as the problem.

27.The Queen Mary Hospital records also seem to be incomplete.  That of 3 June 2005 records that he was seen in the Accident and Emergency Department on the day of the incident.  An X-ray then revealed nothing and he was sent for physiotherapy from 27 May. The cause of his problem was recorded as “Lifted heavy object and slipped [down] stairs.”  He now walked with an antalgic gait.  As usual most of the notes are indecipherable but a drawing and short note identifies the lumbar region as the site of pain.  On 13 June 2005 pain was recorded as radiating to his right leg (thigh).  There had been no improvement.

28.Just over a week later (21 June) the record is quite indecipherable.  One week later the notes are, for the most part, legible.  Importantly an X-ray showed mild degeneration.  Pain had not improved.  He walked with a limping gait.  There was muscle spasm at the 7^th lumbar level.  Thereafter there are voluminous records of physiotherapy.  Like most people with a chronic back problem he has had good and bad days.

29.Dr Julian Chang referred him for an MRI of his lumbar spine in late September 2005.  The MRI report from Dr Michael Lin needs some interpreting but this much is clear—he found desiccation of the disc but no herniation.  Unfortunately there appears to be no report from Dr Julian Chang who is a well-known orthopaedic consultant with a good deal of expertise in spinal injuries resulting from inappropriate strain or pressure.

30.The parties’ solicitors obtained a joint report following a joint examination from Dr Wong Chin Hong and Dr Lam Kwong Chin, both well known orthopaedic consultants.  Their examination took place on 23 October 2008, three and a half years after the accident and two and a half years ago.  I expressed some concern about the approach of the two consultants and the basis of some of their opinions.  That concern remains.

31.I am not at all convinced that they obtained an accurate history in relation to the first back injury.  I recall the earlier note “language barrier” even though a Chinese interpreter was present at the interview.  In relation to the accident under review the only detail recorded is : “when he passed a bucket of water to a co-worker in a gondola, he felt a sudden click at back and felt back pain”.  Throughout their reports the reference is to “a bucket of water” and to its being within the “normal tolerance of a manual worker”.  It was not an ordinary bucket of water he was lifting.  It is true that manual worker on construction sites and in other working environments, including domestic ones, regularly handle buckets of water which do not occasion any risk or problem.  But had a proper history been taken from this plaintiff by the consultants and had proper instructions been given to them by the solicitors for the parties, they would have realised that the situation was significantly different from that loosely described by them.  As a consequence I have concluded that they have, in regarding what they thought was the somewhat mundane mechanism occasioning injury on 23 May 2005, attributed excessive and unjustified importance to the injury of 29 March 2005.  Somehow this initial injury seems to have been elevated to an undeserved importance and the consultants’ comments on later X-rays and an MRI scan, have been influenced by this.

32.They reviewed the hospital and physiotherapy records.  Amongst them was a reference to the MRI report requested by Dr Julian Chang but they do not seem to have inquired as to whether there was a report from Dr Chang.  They noted “dessication [sic] of the disc.  No herniation.”  “Without herniation” or other detectable pathology they opined that “the change did not carry a clinical significance”.  We are often told that signs of disc degeneration are found in us from our early 30’s.

33.An MRI of the lumbar spine was taken by Dr Fok on 8 December 2005 but they did not follow this up.  A Medical Assessment Board on 12 May 2006, one year after the accident, stated that there was a prolapsed intervertical disc at L5/S1.  They have not disagreed with that. 

34.The plaintiff told them that he had had another MRI scan done in late 2006 when the possibility of surgery was discussed.  The consultants did not follow that up.

35.They had X-rays of the lumbosacral spine taken.  “Minimal degenerative marginal ostephytes were noted in L3 and L5 vertebral bodies … intervertebral disc spaces are normal in heights … mild lumbar spondylosis.”

36.Their findings when the plaintiff was walking and moving his limbs, accorded with what I saw on the video recordings taken of him walking about in Hong Kong in 2008.  Neither consultant suggests at any stage that the plaintiff’s performance of tests and complaints was anything other than genuine.  I was able to identify all the features of a serious back condition from the films I saw.  He displayed the classic symptoms of what is commonly called a “slipped disc”.  Neither consultant thought that there was likely to be any improvement, and further conservative treatment was unlikely to produce any material change.  Surgery was discounted.  He would have difficulty with strenuous jobs requiring frequent bending or lifting of a heavy load.

37.In view of their comments on the significance of the back injury sustained on 29 March 2005 as being exacerbated by the second injury, the consultants were asked to apportion responsibility for his present condition between the two injuries.  As I have indicated the consultants did not, for one reason or another, have a correct and sufficient assessment of the mechanism of the second injury or even sufficient information on the first.

38.It was crucial that they should be in a position properly to evaluate all the aspects of that accident.  Their superficial assessment of it could well have led them to consider that his back was peculiarly vulnerable if he were unable to pass a bucket of water to a co-worker without injury to his back.  Dr Lam spoke of an average manual worker being expected to handle such loads many times a day but he cannot, in my judgment, have meant loads of 30–40 kilos in the form of this container of water.  The plaintiff in fact was carrying out this operation twice a day, and the consultants did not even know that fact.  Dr Lam in the joint follow-up report said : “The alleged accident might have aggravated the condition and contribute partly to the present condition.”  This confirms that, in my judgment, the consultants had no clear or accurate picture of the second accident.

39.As a consequence I am satisfied that they mistakenly viewed the first injury as being far more serious than it was.  In my view the attempt to identify and apportion degrees of responsibility for his present state is fallacious and borne out of an erroneous understanding of the facts.  The letters which invited the consultants to expand on their opinion were no more informative and the consultants’ replies merely repeated what they had said earlier.

40.This young man—34 years old at the time and 40 now—has unarguably a bad back.  I find that it is entirely attributable to the accident of the 23 May 2005.

41.The video recordings of his movements speak clearly of his problems.  He is not going to improve and will not be able to do work which requires good mobility, body strength and manual labour.  The human body is affected both physically and psychologically by a permanently weakened and painful back.  Back injuries of this nature are notoriously under-valued in terms of damages as compensation.  Moods are affected as well as self-esteem. Leisure activities are extremely limited.

42.I am reminded of a personal injury action being tried before the late Faulks, J. some years ago now.  The judge had a somewhat disconcerting habit of getting up from his chair and walking up and down the dais of the bench a few times.  Counsel for the defendants (instructed of course by the insurance company) had failed to read the signs.  His trivializing of the plaintiff’s back injury brought forth from the judge who had his hand firmly on his lumbar region—“One tends to be dismissive of back injuries unless you have one!”

43.I bear in mind the awards referred to but I have to bear in mind the many years of the future which this plaintiff has to endure with this back.  The proper figure is HK$250,000.

SPECIAL DAMAGES

44.These have been agreed at HK$8,095.  I had assumed that this is a net figure after deduction of the EC payment.  If I am mistaken then the payment of HK$197,481 must be deducted from the partial continuing loss.

FUTURE LOSS OF EARNINGS

45.He is presently earning HK$8,800 per month as a security guard performing light work.  He does not know how long this will last.  He will always ask for light work.  He cannot perform the fully active role of a security guard.  This represents a continuing partial loss of about HK$10,000 monthly or HK$120,000 per annum.  To that should be added the benefit of his former employers MPF contribution at 5%, making HK$126,000 annually.  The appropriate multiplier is 12.  That makes a total continuing loss of HK$1,512,000.  The defendants have not put forward any figures to counter this but merely rely upon an argument based on the flawed medical opinion which I have rejected for the reasons set out.

RISK ON THE LABOUR MARKET

46.The principle described by Lord Fraser in Chan Wai Tong v Li Ping Sum (1985) HKLR 176 followed the English Court of Appeal’s decision in Moeliker v A. Reyrolle Co. Ltd (1977) 1WLR 132 which itself had adopted the reasoning in Smith v Manchester Corporation, a more prosaic title of an action, which is probably why Moeliker sticks more readily in the memory.  Effectively the question to be asked is : is there a risk that the plaintiff will lose his current job at some time before the estimated natural end of his working life by reason of the injuries and incapacity consequent upon the defendants’ negligence?  If there is, one has to quantify the present value of the risk of future financial loss taking into account the degree of risk, when it may occur and all the factors which may affect his chances of getting a job or an equally well paid job.

47.A consideration of the 18^th edition of McGregor on Damages (2009) lends force to my approach:

“… The requirement that there be a real risk of future unemployment is not to be interpreted too strictly is also evidenced by [two] cases. [Frost v Palmer (1993) P.I.Q.R. Q14, C.A. and Robson-v-Liverpool City Council (1993) P.I.Q.R. Q78 C.A.] Nonetheless some concern has been expressed that the tendency is for courts to underestimate the likely loss and to err on the ungenerous side in their awards.”

48.There is always therefore an element of crystal-gazing but there must be a rational factual matrix against which the assessment must be made.  The nature of this plaintiff’s injury, his overall condition and the limited type of work which he can carry out, indicate that the risk of being unemployed for lengthy periods frequently, and of having to give up work before the normal time simply because he will become unemployable, is very high.  I have concluded that I should allow 2½ years at his current salary of HK$8,800 per month making a sum of HK$264,000.

49.I am conscious that this may still be on the ungenerous side but I would need to have counsel argue the approach in the light of a consideration of a study by Lewis, McNabb and Wass entitled “Methods of Calculating Damages for Loss of Future Earnings” [2002] J.P.I.L. 151, and of the commentary and methodology in the 6^th Edition of the Ogden Tables.  I hope a court will soon have the benefit of that and that counsel in the personal injury field of litigation will make it an important part of their approach to claims for future loss of earnings.

50.The total is:

General damages	$250,000
Special damages	$8,095
Continuing future loss	$1,512,000
Smith v Manchester	$264,000
	$2,034,095

51.There will therefore be judgment for the plaintiff for HK$2,034,095 subject to clarification of the EC payment, with costs and with interest on the respective items at the prevailing rate for the relevant period, to be agreed by the parties.

POINTS FOR PRACTITIONERS—SITE INSPECTION

52.It was obvious that a site inspection would be required.  It was carried out at trial a little earlier than I would have preferred because of the possible imminence of a typhoon or tropical storm.  It would have been preferable after the evidence of Mr Gurung Prasad.  It is incumbent upon the parties legal representatives to notify the court of this need so that arrangements can be put in hand and estimates of the length of trial can take this into account.  Measurements of the container and gondola should have been obtained in advance.

MEDICAL EVIDENCE

53.I have been extremely concerned at the state of the medical evidence.  When one or two consultants are to be instructed jointly for the benefit of the parties in order to facilitate a proper assessment of the medical state of the plaintiff, there should be one joint letter of instruction.  If practitioners sent separate letters of instructions there is a clear risk of compromising a joint inspection—one consultant may have been told something which could colour his view of the plaintiff.  They should never be asked directly to consider matters which may affect liability.  The defendant’s solicitors were particularly at fault in their letter of instruction.

54.In this case the consultants were not properly instructed about the mechanism of the injury.  Furthermore the misunderstanding that a “bucket of water” was involved was compounded by the further instructions which asked them to elucidate upon their earlier comment about causation as between the two accidents—which in any event they failed to do.

55.They should never be asked to assess percentages or degrees of impairment of the whole person.  They are irrelevant and useless in common law claims.

56.Finally they should be asked to obtain any reports, X-rays, MRI scans etc. which they discover have been made or carried out on the person they examined.

COPY DOCUMENTS AND COURT BUNDLES

57.Documents were duplicated unnecessarily, many were in a haphazard order, and others such as sick notes and certificates should have been collated in a schedule which would have required only one or two sheets.  Photographs were not dated and had no description.

58.The video surveillance report and photos must not contain comments or opinions, merely a factual identification of place, time and persons viewed.

59.The lack of discipline in the preparation of these bundles results in confusion and more unnecessary work for the judge.

60.Excessive copying is a waste of money. Practitioners seem to have forgotten or ignored the lessons of a decade ago.  I shall draw the attention of Taxing Masters to this aspect of wasted cost so that they may deal with it accordingly.

Mr John Wright, instructed by Messrs Massie & Clement, for the Plaintiff

Mr Neal Clough, instructed by Messrs W.H. Chik & Co., for the 1^st Defendant