Samper v Asb-Tech Services and Anor [1999] NSWSC 462 (18 May 1999)

Last Updated: 21 May 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Samper v ASB-Tech Services & Anor [1999] NSWSC 462

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): N30051 of 1996

HEARING DATE{S): 20/10/98-22/10/98

JUDGMENT DATE: 18/05/1999

PARTIES:

Hipolito Samper

ASB-Tech Services Pty Ltd

Electricity Commission of NSW t/as Pacific Power

JUDGMENT OF: Dowd J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

P: Mr C. Calloway Q.C. with Mr Kirby

D1: Mr M. Williams

D2: Mr R. Royle

SOLICITORS:

Bale Boshev & Associates

Glover & Glover

Dunhill Madden Butler

CATCHWORDS:

negligence

unsafe system and place of work

negligence not established

credibility of plaintiff and his witnesses

ACTS CITED:

Workers Compensation Act 1987

DECISION:

verdict for the first defendant

verdict for the second defendant

verdict for each cross-defendant on the cross claim

JUDGMENT:

- 21 -

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DOWD J

Tuesday 18 May 1999

N.300051/96

SAMPER V ASB TECH SERVICES

REASONS FOR JUDGMENT

1 The plaintiff, Hipolito Samper, who is called by the diminutive, "Paul" brought this action against the first defendant, referred to herein is ASB-Tech, alleging negligence against ASB-Tech in that it failed to provide a safe place or system or work and that the plaintiff was directed to carry out work in an area that was unsafe and to use a hose a platform likely to become slippery and that ASB-Tech breached the Occupational Health and Safety Act 1993 in that it failed to instruct the plaintiff as to a safe means of carrying out the work and failed to provide a safe floor on which the plaintiff was to carry out its work.

2 ASB-Tech is a company in liquidation in respect of which at the commencement of the hearing, I granted leave for the matter to proceed, pursuant to s.471B of the Corporations Law.

3 The second defendant herein referred to as "Pacific Power" was (at the time of the relevant events) in the course of de-commissioning Wangi Power Station, employed ASB-Tech to carry out work for the demolition and removal of asbestos from the power station.

4 The plaintiff alleged that Pacific Power was negligent in that it failed to provide a safe place and system of work and directed the plaintiff to work in an area that was unsafe, requiring the plaintiff to use a hose on a platform likely to become slippery. The plaintiff further alleged that Pacific Power failed to provide a safe means of access and egress under the Occupational Health and Safety Act (1983) and failed to instruct the plaintiff in the carrying out of the safe means of his work and breached its duty of care to the plaintiff in that it failed to provide barriers as required by the Construction Safety Regulations 1912.

5 The defendants both denied negligence and both alleged contributory negligence by the plaintiff. ASB-Tech also alleged that the plaintiff's ability to lead a normal life has not been significantly impaired by the injuries alleged pursuant to s.151G of the Workers Compensation Act 1987. ASB-Tech also alleged that the plaintiff has not sustained injury in terms of s.151H of the Workers Compensation Act 1987, and that the plaintiff has made false statements and pleadings to induce ASB-Tech to make payments of compensation and claim damages.

6 The allegations of fraud were that he had endeavoured to induce a witness to provide false evidence as to where he was injured in that the plaintiff was not working where he was directed to work and that the plaintiff was at the time endeavouring to steal from Pacific Power and was not acting in the course of his employment from ASB-Tech.

7 Each defendant brought cross-actions seeking contribution for indemnity from the other. Pacific Power has additionally claimed indemnity pursuant to an agreement between ASB-Tech and itself.

8 The plaintiff who was born on 15 November 1949 and is now aged 49 came to Australia from Spain in 1974 and on 11 October 1994 commenced work with ASB-Tech as a rigger. The plaintiff was married with no children. He worked for various companies as a rigger before commencing employment with ASB-Tech.

9 The plaintiff's duties at ASB-Tech involved general labouring activities as rigging. Checking and maintaining and cleaning various areas and sometimes driving a crane. As part of the plaintiff's duties he was concerned with the removal of asbestos and cleansing of the shower room used by the asbestos workers. Part of his duties also involved sealing the holes in various parts of the plants with adhesive paint, to protect workers on the plant being exposed to asbestos dust.

10 At about 6.30 in the morning on 15 July 1995 the plaintiff had been cleaning the Wangi site using a hose, broom and mop. There is normally no work on a Saturday there being only a small number of employees, present perhaps 10 or 12. The area where the plaintiff had been cleaning was on the top of three levels of the premises. The level below that being a series of platforms in the nature of a mezzanine floor approximately 4 metres from the ground floor.

11 The plaintiff's evidence was that he had come down the stairs from the shower level to the area where he contended that he had fallen. He said he came down the stairs which are steel mesh stairs and that he walked along the lowest level and then ascended the vertical set of stairs to the top of the platform which is the mezzanine level referred to from which he says he fell. The plaintiff said that he did work on top of the mezzanine platform cleaning the floor as a lot of water came into the boiler room. He said that the floor, which is the mezzanine level was very wet and that he was cleaning it with a broom. The surface was a concrete smooth surface with no lip or rim around it, there being a wall at the back of the platform. His evidence was that he put down all his gear on the lowest level and climbed back up the ladder to tape holes in the wall at the rear of the platform where cables and pipes had been taken out. He said he taped around the holes.

12 The plaintiff's evidence was that he was facing the direction of the vertical ladder standing on the mezzanine platform and that he put his foot forward and slipped and fell face down to the ground level below. Adjoining the steps facing the direction the plaintiff was facing was a steel beam which appears from the photographic evidence to be only a very short distance from the ladder and does not appear wide enough for the plaintiff to fall between the ladder and the beam. He said he did not touch the ladder and tried to reach the beam but went straight to the ground head first hitting his face on his arms which he had crossed in front of his forehead. He said he was wearing joggers with steel caps at the front specially made for the task he was undertaking. The plaintiff said that he had told an officer of Pacific Power that there was water continually on the area on which he had worked and that the problem had not been fixed.

13 The plaintiff's evidence was that he tried to get up from the concrete floor and that he was in terrible pain and could see bones protruding from his arms and a number of teeth had been dislodged. He then walked to the staircase from which he had originally descended before mounting the platform and was discovered there by two other workers who had heard a noise, a Mr Simon Curtis and Mr David Vane. Curtis and Vane called an ambulance and the plaintiff was taken to the John Hunter Hospital. The plaintiff was unable to use his arms and his jaw was broken and teeth dislodged.

14 The plaintiff was at that stage in a de-facto relationship with a Mrs Smith with whom he continued to live at the time of this hearing, although the parties had by then separated but under the same roof.

15 There was tendered in evidence a compensation claim form which the plaintiff said was completed by his de-facto wife's brother, Mr Darryl Geatches, the form having being given to Geatches. The plaintiff's evidence was that Geatches filled out the form and that the plaintiff had not given him information for that purpose saying that he was outside while Geatches filled out the form. He said that David Vane, being one of three Vanes working for ASB-Tech had discovered the plaintiff on the staircase. He said that the plaintiff had great difficulty talking and that he did not give Vane or anyone else a description of the accident that he had slipped from a rung of the ladder as alleged in the form. There was also admitted in evidence a Workcover Authority medical certificate which the plaintiff alleged was filled out by his de-facto wife, although he had signed the document. The certificate which was completed some nine days later on 24 July stated that the plaintiff had slipped from the first floor to the ground because the floor was wet and slippery.

16 In cross-examination the plaintiff said that he was not able to talk to anyone and the first word he said to anyone after the accident was in the hospital after the operation which he had performed on him, which was a couple of days later. The plaintiff then said that he didn't remember talking to anyone and that he had never seen anyone from work. He said David Vane had seen him a couple of days after the operation and denied that Vane had seen him on the day of the accident at the hospital. The hospital notes which were exhibited in the proceedings confirmed the plaintiff's oral evidence that he had had a coffee and a biscuit that morning about 6.00 am. When asked about whether he was allergic the plaintiff as noted in the hospital records said that maybe he had said to the nurses that he was.

17 When cross-examined as to whether the plaintiff had a conversation with the ambulance officer he said he couldn't remember whether he had talked to the ambulance man but he said that he didn't talk to the ambulance man in the way that it had been suggested. He then later said at p.49 of the transcript;

"A. Never told the ambulance man nothing. Maybe the boys who took me to the ambulance man. I never talk to the ambulance man."

18 When the plaintiff was asked as to whether he had discussed the accident with David Vane he said that he and Vane were never good together and that he had not discussed the accident. The plaintiff alleged that he had always had trouble with Vane. The plaintiff admitted that Vane had visited him in the hospital but denied that there had been any conversation with Vane. The plaintiff said that he thought it was the second or third day after the accident but that the plaintiff's de-facto wife was with the plaintiff at all times. It was put to the plaintiff by Mr Williams Q.C. for ASB-Tech that David Vane had been asked by the plaintiff on the night of the accident whether Vane could locate him at another location. This was denied by the plaintiff.

19 When cross-examined about his capacity to read, in relation to the signing of the claim form the plaintiff denied that he could read although subsequently admitted to signing an application form for other employment and then gave evidence that he understood some words. In relation to the claim form he alleged that his brother-in-law had read it to him and he had signed but that he had never seen the contents of the form. He denied giving anyone a version of how the injury had occurred but in the proceedings gave no explanation other than that his brother-in-law had filled in the form but at no stage did anyone give any credible explanation, on behalf of the plaintiff as to how the version which came to be in the claim form had been written.

20 In relation to the carrying out of his duties, the plaintiff said it was to Darryl Vane to whom he was answerable as the person in charge of him employed by ASB-Tech and that Darryl Vane and he had, very good relations. The plaintiff contended that he had seen Darryl Vane hand his brother-in-law the form which his brother-in-law had asked the plaintiff to sign.

21 The plaintiff called Geatches to give evidence, Geatches being the plaintiff's de-facto brother, who provided the plaintiff's house which was owned by a company controlled by Geatches. Geatches evidence was that he had copied the details of the accident report onto the claim form and had asked the plaintiff to sign it. The form which is dated 3 August 1995 stated "foot slipped on wet rung of ladder causing fall to concrete floor. 3m below." Geatches gave evidence as to his experience in the mining industry and his misunderstanding of the importance of claim forms. He said that he had spoken to the plaintiff about the circumstances of the accident he said "briefly once." Geatches evidence was at transcript p. 69;

"A. He had to do some inspections, he climbed up some ladders, spun around, feet went from under me and slipped and fell."

22 Geatches said that this was the version that the plaintiff had given in hospital. Geatches admitted that there was no version given to him of the plaintiff's foot slipping on the rung of a ladder. Geatches said that in hindsight he should have read to the plaintiff the version of the accident he had written down and asked the plaintiff if he had agreed with it.

23 The plaintiff's former de-facto wife then gave evidence of her attending the hospital on 15 July 1995 and saw the plaintiff before he underwent any operation. She was attended by her 34 year old daughter. Mrs Smith said that the handwriting on the claim form which is exhibit F was in her own handwriting and that she had obtained the information from the plaintiff. She said that the information was provided to her at about 3.00 pm on the day of the accident. She said that David Vane and his wife had visited the hospital that afternoon but denied that there was any conversation between the plaintiff and David Vane. Mrs Smith then gave evidence about the work that she carried out for the plaintiff after he returned home from his injuries and the notebook which she had used to record the work which she did including diving him to the doctors. She said that her daughter had helped her in relation to the keeping of the records. She gave evidence as to the limitations in the use of the plaintiff's arm. Mrs Smith said that when Mr Vane and his wife were with the plaintiff in the hospital on either the Saturday of the injury or the following day she said that the plaintiff didn't talk very much because he couldn't and that she could understand him only vaguely because of the silver paper in his mouth.

24 The plaintiff called as a witness the said David Vane who described finding the plaintiff on the stairs earlier described, that he was in a bloody state with blood on his mouth and one arm was bent and twisted. David Vane said that it was about 15-20 minutes from the photograph exhibited in the proceedings where the plaintiff alleged that he had fallen. Vane said that the plaintiff said,

"Well put me at the bottom of the stairs"

He said the plaintiff said to him;

"I fell on the bottom of these stairs but that is not where I actually fell"

25 The plaintiff indicated the stairs from the mezzanine level. David Vane said that he had difficulty in understanding the plaintiff.

26 David Vane said that he and his wife had visited the plaintiff on the Saturday afternoon after Vane had finished his work and that he had gone with a balloon and some flowers. David Vane said that the plaintiff had asked vain whether he had seen some pipe cutters and that he had looked around and found them on a mezzanine floor but that that mezzanine floor was similar to that referred to by the plaintiff but was further back up the building. David Vane identified a photograph of the pipe cutters that he had located and discovered on the mezzanine level, that he had described some lengths of copper pipe that looked as though they had been freshly cut. David Vane's evidence was that the plaintiff had no duties to perform on the mezzanine floor on the Saturday. He said that his first cousin Darryl Vane was working in the office and was the manager in charge. David Vane said that later he had had a conversation with the plaintiff and that the plaintiff said he had been cutting some piping on the mezzanine level which he called "the dummy roof" and that he was reaching above his head at the time and fell onto the basement floor. David Vane said he had told Darryl Vane of what he had actually discovered but conceded that the claims forms had been filled out identifying what David Vane understood to be the wrong dummy roof. David Vane's explanation was that he thought the plaintiff would have been sacked on the spot for what the plaintiff was doing. David Vane said that he had gone back to the floor and cleaned up the fresh blood so that there would be no evidence of where the plaintiff had said he had actually fallen. In cross-examination David Vane said the plaintiff has said to him;

"Tell them I fell on the stairwell of the dummy roof on boiler 4"

27 David Vain said that the plaintiff was mumbling or muttering. He said the area the plaintiff alleged to have fallen was not the location where David Vane had found the pipes nor cleaned up the blood.

28 David Vane admitted that he had told Darryl Vane that what the plaintiff had told him was a lie. David Vane said there had not been enmity between the plaintiff and himself, as alleged by the plaintiff but in fact they had worked together for twelve months and had been out some times to a club with their respective wives. David Vane then recollected that he had found the pipe cutters on the basement or ground floor and the copper pipes on the mezzanine roof but at the other location further away, not at the location alleged in the plaintiff's evidence before this court. His evidence further was that he thought the plaintiff was the safety officer at the time of the injury. There was then admitted in evidence two statements by David Vane, the first of which gave one version of the events and the second in accordance with the evidence which he had given in court. Mr Royle for the second defendant called a Mr Peter Dedman who at the time had been the relevant time had been the engineering officer for Pacific Power. His evidence was that ASB-Tech had a safety officer. Mr Dedman had arrived at the site shortly after the plaintiff was injured and took photographs of what he understood to be the accident site. Those photographs were exhibited in the hearing. His evidence was, as evidenced by the photographs, that the condition of the mezzanine floor on which the plaintiff alleged he was working had no evidence of any water nor is there any evidence in the photographs that were exhibited in the proceedings. There is evidence that there was water on the basement or ground floor. His evidence was that he had taken the photographs at about 10.48 am less than half an hour after the injury and that he could see no blood at the site of the bottom of the vertical stairs other than on the plaintiff.

Analysis of the Evidence

29 The manner in which the plaintiff gave his evidence both as to the court's observation of him and the way in which he actually worded answers to questions demonstrated a determination on the part of the plaintiff to undermine damaging evidence which he clearly anticipated from David Vane. The allegation of bad faith between them contended by the plaintiff and the plaintiff's claim that the plaintiff was unable to talk adequately to David Vane, on the day of the accident because of his injuries were unconvincing. David Vane gave his evidence in a forthright manner and appeared to be giving an accurate version of the events which he described in his evidence as to conversations and as to what he found and saw.

30 I find that the conversation generally as given in evidence by David Vane occurred with the plaintiff both at the hospital and at the subsequent occasion when the accident was discussed. The finding of the pipe cutters and the copper pipe I accept and draw the inference that this had something to do with the plaintiff's activities. I accept David Vane's evidence that the first version given by him in the statement exhibited before me was given with a view to assisting the plaintiff in some way so that the plaintiff would not lose his job, but that the second version in fact constituted the facts as actually occurred, which coincided with Vane's oral evidence.

31 I find that the version given by the plaintiff is an improbable version of how he came to be injured. The information provided to the hospital and the ambulance officers could only have been provided by the plaintiff. He was the only one with the information as to what he had consumed that morning. Clearly he was able to carry on some form of limited conversation. There has not been a version provided as to the completion of the form which contends that he slipped on a rung when ascending the vertical ladder to the mezzanine platform. The fact is he did sign the form, however limited his knowledge of English and the version of him slipping from the ladder further undermines the credibility of the version that he gave in his evidence before the court.

32 The evidence of Mrs Smith and her brother were both carefully tailored to fit in with the version of the plaintiff in his oral evidence and I do not accept their evidence where it conflicts with David Vane. I do not accept Mrs Smith's evidence as to the fact that there was no conversation with David Vane at the hospital and that she was with the plaintiff the whole time and that he could not have discussed the matter with anybody on the day that the injury occurred. I accept the evidence that the plaintiff was in fact carrying out activities inconsistent with his employment at a different location to where he was obliged to carry out his duties, and outside the scope of his employment.

33 The evidence given by the plaintiff as I have referred to above, in enumerating the facts show a number of variations when pressed in cross-examination, as to what conversations he had on the day. If I were to accept the plaintiff's version as to his inability to communicate it is incomprehensible as to how the hospital records in evidence could have shown the information that clearly came from the plaintiff. The whole of his evidence concerning the conversations which he said did not take place conflict with several occasions when he admitted that the may have been able to express some words. I find that the evidence given by the plaintiff as to the location of his injuries and the way in which he slipped did not occur as alleged by him and I do not accept his oral evidence and in that respect I accept the evidence particularly of that of David Vane and also Peter Dedman called by Pacific Power. The photographic evidence taken so soon after the alleged events in the version put forward to this court, by the plaintiff, are in conflict with his evidence as to water being located in the area where he alleges he slipped.

The cause of action against ASB-Tech

34 I find for the reasons set out above that ASB-Tech was not guilty of negligence, that the injuries alleged did not arise out of any breach of duty on behalf of that company and I find that the plaintiff was not acting in the course of his employment when injured.

The Cause of Action against Pacific Power

35 On the evidence given by Mr Dedman and the evidence of David Vane, I find that the plaintiff was not under the supervision of Pacific Power and that it was ASB-Tech for whom he was carrying out his duties. In any event I find that the injuries sustained by the plaintiff were as a result of his own actions in working at another place than his duties with ASB-Tech required him to work, and that he was not carrying out duties on behalf of ASB-Tech required by Pacific Power. I therefore find that Pacific Power was not guilty of negligence as alleged.

The Cross Actions

36 As I have found negligence as against neither ASB-Tech nor Pacific Power there is no basis for the making of any proportionment of liability or indemnity. I therefore find in the case of each cross-action that the cross-claimant has failed to establish any basis for apportionment or indemnity against the other.

Verdict

37 I enter a verdict in favour of ASB-Tech on the plaintiff's action against it and against Pacific Power on the cross-action brought by Pacific Power against ASB-Tech.

38 I give a verdict in favour of Pacific Power in the action by the plaintiff and in the cross-action brought against it by ASB-Tech.

Damages

39 It is appropriate both in terms of the agreement that had been made by counsel and in the areas not agreed that I make findings in respect of the damages claim brought by the plaintiff, granting leave to the parties to re-list the matter in the event of there being any further issues as to damages to be resolved or in the event of any verdict being substituted for the verdicts found by me on the issues of liability.

40 On the medical evidence admitted before the court the plaintiff sustained very severe injuries and considerable pain and suffering as a result of the fall which he obviously had, wherever that fall may have occurred on the subject premises. The plaintiff suffered a perilunate dislocation of the right wrist with associated injury to the median nerve, a lunate dislocation of the left wrist and also a compound fracture of the left distal humerus which was significantly comminuted and intra-articular in nature. The plaintiff also had a number of loose teeth and a fracture of his maxilla. The plaintiff suffered very considerable pain at the time of his injuries and as a result of the medical procedures and subsequent treatment and rehabilitation measures that were effected.

41 The plaintiff spent a considerable period of time in John Hunter Hospital not only because of the operations which were performed on his broken bones but also because of the problems which he had with his personal hygiene. The plaintiff demonstrated problems with range of movement of his elbows and showed evidence of rotator cuff restrictions because of pain. The plaintiff suffered from sensory changes in the median nerve on his right arm.

42 The plaintiff suffered a lengthy period of considerable disability. As a result of subsequent treatment the plaintiff had a successful uniting of the distal left humerus, a restriction in the range of movement of his left elbow and has some minor irritation of the ulner nerve. The plaintiff underwent further surgery on his right wrist to explore the median nerve and a limited arthrodesis was performed after excising the scaphoid bone in his wrist. The plaintiff has since been diagnosed as developing a degree of reflex sympathetic dystrophy and has a marked stiffness of right hand and fingers together with significant pain. The pain continues, and will continue to need analgesics and may require further surgery. He has been left with a significant impairment of his upper right arm and a permanent impairment of his left arm. The plaintiff's left elbow injury considerably resolved and he now has a functional range of movement. His left hand still shows some symptoms but nerve studies appear to be normal for the left hand. The evidence of Dr Mitchell in his report of 6 October 1998 expresses the opinion that a wrist arthrodesis may become necessary to his right wrist.

43 The plaintiff had an orthopaedic examination of his capacity after the injuries he had sustained. The unchallenged evidence is that he has had a 45% permanent percentage loss of efficient use of his right arm and it is unlikely that he will be able to return to any form of employment in the rigging industry. This means that his general future employment prospects remain very limited particularly because of his low educational skills and his limitation on use of English.

44 The plaintiff has difficulty carrying out basic household tasks and matters such as cooking, gardening and dressing represent problems for him. He alleges pain at the slightest touch of his left elbow and the use of his arms. It is very difficult to assess the extent of pain that the plaintiff suffers particularly as this level of pain was not substantially challenged. The evidence of the plaintiff as to his injuries suggest very strongly a degree of exaggeration of symptoms and the medical evidence tends to support this. Nevertheless the plaintiff does suffer substantial restrictions in his use of his upper limbs and will continue to suffer loss of amenity of life and the probability that he will be unable to meaningful rejoin the workforce.

45 The plaintiff presents as a very sad man, whether he be exaggerating his symptoms nevertheless he is clearly suffering considerable pain and restriction on his everyday activities and his enjoyment of life. I consider the plaintiff has received a serious injury in terms of the Workers Compensation Act 1987 and that his accumulated injury is 40% of the maximum which may be awarded against ASB-Tech. The amount under the Workers Compensation Act at the relevant time is $217,600.00.

46 As against the second defendant I would assess general damages at $125,000.00.

47 The parties have agreed on average weekly earnings at $600.00 and have calculated past wage loss to the date of hearing at $104,000.00 which I allow. I also allow an appropriate the sum of $18,000.00 for the 30 weeks from date of hearing.

48 The parties have agreed for an Fox v Woods allowance of $11,737.00 to which I allow and to which I allow such further sum may be appropriate to the adjustment I have made to the past wage loss. I grant leave to the parties to re-list the matter if they are unable to agree on the calculation of that sum.

49 In terms of future wage loss I allow a period of 15.5 years on the 5% discount tables as against the first defendant, and the multiplier is therefore 567. As against the second defendant I allow economic loss for a period of 15.5 years on the 3% tables, the appropriate multiplier being 644.

50 The parties have agreed on loss of part out-of-pocket expenses as at date of hearing at $43,871.36. I allow that sum together with additional out-of-pockets that may have been incurred since the hearing.

51 The parties have agreed on out-of-pocket expenses including visits to G.P's at $10.00 per week, which I allow on a life expectancy of 34 years as against the first defendant on the 5% discount tables being the multiplier of 865.09 and as against the second defendant on the 3% discount tables being the multiplier of 1119.01.

52 The parties have agreed on an hourly rate for the services of the plaintiff's then de-facto wife. As at date of hearing there was a claim of 1060 hours at a rate agreed between the parties of $12.50. That is the same rate agreed in futuro. Clearly for a considerable period the plaintiff was unable to look after himself and required some assistance. I considered he and Mrs Smith have exaggerated the extent of assistance provided in the past and now necessary. The evidence which was given as to the way the hours were calculated and recorded shows some degree of exaggeration on the part of Mrs Smith. I think it appropriate to date of hearing I allow one half of the total past claim namely, 530 hours at $12.50. Since that time I consider that although the plaintiff is unable to be part of the workforce that the extent to which he now needs assistance other than what would normally be provided to him is of the order of one hour per day and I therefore allow additionally to that which was agreed for past claims at the date of hearing a further 208 hours. The future allowance for services at 1 hour per day will continue for the 34 year life expectancy of the plaintiff.

53 The parties have sought that costs be deferred for further argument.

Orders

54 The orders that I therefore make are as follows;

1. Verdict for the first defendant against the plaintiff.

2. Verdict for the second defendant against the plaintiff.

3. Verdict for each cross-defendant on the cross-claim brought against each cross-defendant.

4. Liberty is reserved to apply in respect of matters of damages requiring further argument or calculation.

5. Costs reserved.

oOo

LAST UPDATED: 18/05/1999