Margaret Lorna Arthur v Commonwealth of Australia; Canberra United Masonic Temple Trust and Challenge Property Services Pty Limited [1992] ACTSC 60; (1992) 108 FLR 206 (19 June 1992)

SUPREME COURT OF THE ACT

MARGARET LORNA ARTHUR v. COMMONWEALTH OF AUSTRALIA; CANBERRA UNITED MASONIC
TEMPLE TRUST and CHALLENGE PROPERTY SERVICES PTY LIMITED
No. SC 1546 of 1986
Employment Law - Negligence - Measure of damages
[1992] ACTSC 60; (1992) 108 FLR 206

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Employment law - liability of employer for injury to employee - duty to provide safe system of work and safe place of work - non-delegable nature of duty - duty to ensure reasonable care taken by cleaner of washroom used by employees.

Negligence - duty of care - reasonable foreseeability of injury - no new matter of principle.

Negligence - measure of damages - personal injuries - causation - aggravation of pre-existing condition - no new matter of principle.

Measure of damages - medical and hospital expenses - loss of earnings and earning capacity - non-pecuniary damage - Griffiths v. Kerkemeyer claim - no new matter of principle.

Negligence - apportionment of responsibility and damages - contribution between employer of plaintiff and cleaning contractor to employer's lessor.

Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672

Stevens v. Brodribb Sawmilling Company Pty. Ltd. [1986] HCA 1; (1986) 160 CLR 16

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

HEARING

CANBERRA
19:6:1992

Counsel for the plaintiff: Mr B. Salmon QC with Ms P. Burton

Solicitors for the plaintiff: Higgins Solicitors

Counsel for the defendant: Mr S. Gibb

Solicitors for the defendant: Australian Government Solicitor

Counsel for the Third Party: Mr J. Purnell

Solicitors for the Third Party: Sly and Weigall (formerly Sly and

Russell)

Counsel for the Fourth Party: Mr R. Crowe

Solicitors for the Fourth Party: Minter Ellison

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff against the defendant for
$313,143.95.
2. The defendant pay the plaintiff's costs to be taxed and agreed.
3. There be the usual order as to interest consequent upon orders 1
and 2.
4. There be judgment for the defendant against the fourth party for
$156,571.97 together with one half of the plaintiff's costs as taxed
or agreed.
5. The defendant and fourth party each pay their own costs in the
contribution proceedings.

DECISION

The plaintiff sues the Commonwealth for damages for negligence as a consequence of injuries she sustained whilst working as a public servant in Bligh House, Barton, on Monday, 18 June 1984. The Commonwealth claims contribution from the fourth party, Challenge Property Services Pty. Limited, which was the cleaning contractor at the time. Other contribution proceedings have been resolved by agreement.

2. The plaintiff's injury occurred in the women's toilet and washroom on the first floor of the building. The land was leased to Canberra United Masonic Temple Trust and the Commonwealth had a sub-lease of part of the building including Unit 5 on the first floor. The plaintiff's workplace was in Unit 5. Part of the Department of Administrative Services was located in Unit 5. The women employed there shared the toilet and washroom with women employees of a commercial organization which also had its premises on the first floor of the building. Members of the public who were visiting the office of the Department or the commercial organization also had access to the toilet and washroom.

3. The floor of the washroom consisted of ceramic tiles about 5 cms square with a cement-type grout separating each tile from the other. There were two ceramic hand basins available, both set in a single bench top with a laminated surface. The bench top ran the length of one wall. As one faced that wall there were on another wall on the right, two electric hot air hand dryers and on another wall on the left, one, or possibly two, paper towel dispensers. According to photographs the floor appears to be level without any discernible slope.

4. The plaintiff commenced work at about 8.30 a.m. and at about 9.15 a.m. visited the toilet. She washed her hands at one of the hand basins and turned to her left towards the paper towel dispensers. As she did so her foot slipped underneath her and she fell to the floor. She attempted unsuccessfully to check her fall by seizing the surrounds of the hand basin. She lay on her back immediately after falling and felt pain in the middle and lower back.

5. As the plaintiff fell, a colleague, Mrs Mary Thomson, entered the washroom and went to the plaintiff's assistance. She noted that the plaintiff was dazed and appeared to have difficulty speaking. She also noticed a small pool of water covering about four of the floor tiles near the plaintiff's feet.

6. The plaintiff was taken on a stretcher by ambulance to the Royal Canberra Hospital as it then was. Whilst on the stretcher she noticed a damp patch at the back of her skirt.

7. Later, when the plaintiff reported her injury, her supervisor, Mr Hans Voigt, mentioned to her that there had been previous reports of a slippery floor in the women's washroom. In his note dated 15 August 1984 endorsed on the plaintiff's report of injury, Mr Voigt wrote, "I have received other verbal complaints regarding the slippery surface in ladies washroom". Mrs Thomson also gave evidence about complaints to this effect. She said that on one occasion Mr Voigt told the complaining employee to report the matter to the Property Section. There was no evidence from the Commonwealth about what steps were taken in response to those complaints.

8. Mrs Thomson said further that on previous occasions the water which she had observed on the floor was mostly around the basins and sometimes was there all day. She added that on occasions when she had come to work as early as 8 a.m., she had noticed that the floor was particularly wet.

9. Evidence was given by Mrs Antonia Fusan, a cleaner employed by Challenge Property Services Pty. Limited. She had the task of cleaning the women's toilet and washroom on the first floor in 1984. She had had that job for some two to six months prior to the plaintiff's injury and continued until sometime later in 1984. She claimed that she remembered the day in question because it was her birthday. She said that it was her routine to commence work at 5.30 a.m. Her routine varied according to the day of the week. On a Monday she cleaned the toilets generally, but did not mop the floor. That was done regularly on a Friday and sometimes on a Wednesday. She said that nobody had ever complained to her about the ladies toilet being left wet, and that she normally finished by 7.30 or 8 a.m. She agreed that when she did mop the floor, there was always an amount of moisture there when she finished which took ten minutes at the most to dry. She said that she washed the hand basins every single day, but apart from the regular floor wash every Friday, and sometimes on a Wednesday, she cleaned the floor only to the extent that there was rubbish on it or something stuck to it. She received no instructions one way or the other as to when she was to wash the floor. That matter was left up to her.

10. Mrs Fusan claimed that she always made sure that the floor was dry. She said, "... I mop it and never spill water there, just have to be very carefully about this, who do the job".

11. Whilst I accept that Mrs Fusan did her best to tell the Court honestly and accurately about her routine, I am unable to accept her categorical statement that she never spilled water on the floor in the area of the hand basin. After all, it was her practice to clean the hand basins daily and it is not unlikely that this involved the spilling of water from the hand basins or laminated bench top on to the floor. Mrs Fusan does not appear to have had her mind directed to the day of the plaintiff's injury until February 1987, nearly three years after the plaintiff's injury. The Commonwealth was on full notice of the plaintiff's injury almost immediately after it happened. It is unfortunate that there was no evidence of any prompt investigation of the circumstances from those responsible for the cleaning.

12. It seems to me that from a practical point of view there is a simple choice between two alternatives as to the origin of the water on the floor which I find to have caused the plaintiff to slip and fall. It must have come to be there either as a result of the cleaning activities or as a result of someone washing her hands at the basin and proceeding in the direction of the paper towels or the hot air dryers. If the incident had occurred say in the late afternoon, one would have had little hesitation in finding that the latter was the more likely origin of the water on the floor. However, in the plaintiff's case, the incident occurred relatively early in the morning, shortly after 9 a.m. Whilst it is true that the employees commenced work at 8.30 a.m., and there is a distinct possibility that somebody had used one or other of the basins prior to the plaintiff, there is no positive evidence that this in fact occurred. I bear in mind that it was well open to the Commonwealth to enquire of its women employees working on the first floor of Bligh House on the day of the plaintiff's injury whether any of them had used one of the hand basins prior to the plaintiff's injury and whether there was a likelihood that water had been spilled on the floor as a consequence. I accept that as a reasonable employer the Commonwealth did not have to guarantee the safety of its employees by ensuring that water was not spilled on the floor of the washroom or by ensuring that, water having been spilt, it was mopped up more or less immediately. The incidence of use of the hand basins by female employees is a matter which is within the province of the Commonwealth rather than of the plaintiff and, applying the principle in Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298, I am more confident of drawing an inference adverse to the defendant on this matter than I am of an inference adverse to the plaintiff. I think it more likely that the water was spilled by the cleaner than by one of the women employees of the Commonwealth or one of the other women who used the washroom. I shall explain why I think that an inference adverse to the Commonwealth may be drawn from the circumstances of the accident.

13. The particulars of negligence alleged on behalf of the plaintiff against the Commonwealth are as follows:

"(a) Washing the surface floor tiles with detergent and water,
making the same slippery.
(b) Failing to take any or any adequate precautions for the safety of
the plaintiff.
(c) Exposing the plaintiff to a risk of injury which could have been
avoided by reasonable care on its part.
(d) Failing to provide a safe floor that was free of slippery
substances.
(e) Failing to provide a safe means or system of cleaning the floor
and draining the same thereby avoiding leaving water on such floor.
(f) Failing to place suitable warning signs warning employees
including the plaintiff of the dangers of slipping on the wet floor.
(g) Failing to cover the said floor tiles with material to avoid the
plaintiff and other employees from slipping on such floor.
(h) Failing to observe that the plaintiff was in a position of peril
in the circumstances.
(i) Having in use a means of cleaning the floor which it knew or
ought to have known would result in the floor being slippery and
unsafe."

14. The Commonwealth as the employer of the plaintiff was under a duty to take no more than reasonable care for her safety. But the duty is such that it is "non-delegable". In Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, Mason J., as he then was, said (at 60):

"The consequence is that in these relevant respects the
employee's safety is in the hands of the employer; it is his
responsibility. The employee can reasonably expect therefore that
reasonable care and skill will be taken. In the case of the
employer there is no unfairness in imposing on him a non-delegable
duty; it is reasonable that he should bear liability for the
negligence of his independent contractors in devising a safe system
of work. If he requires his employee to work according to an unsafe
system he should bear the consequences."

15. In Stevens v. Brodribb Sawmilling Company Pty. Ltd. [1986] HCA 1; (1986) 160 CLR 16, Mason J. restated the position in the following terms:

"... the law sometimes imposes on people a duty higher than the
usual common law duty to take reasonable care. This higher duty is
a duty to ensure that reasonable care is taken and it is said to be
non-delegable because a principal who engages another to perform
work will be liable for the negligence of the person so engaged,
notwithstanding that he exercised reasonable care in the selection
of the contractor."

16. In the joint judgment of Wilson and Dawson JJ. (at 44) their Honours said:

"The most important example is probably the duty of care of an
employer at common law to provide adequate plant and equipment, a
safe place of work and a safe system of work for his employees.
That is a duty which cannot be delegated to an independent
contractor and the duty to take care becomes a duty to ensure that
reasonable care is taken. Other examples are the duty of care owed
by a hospital to its patients or by a school authority to its
pupils. In such cases at least it would seem that liability for the
acts or omissions of a contractor is personal rather than vicarious,
but that aspect of the matter is not beyond debate."

17. The present case is to be distinguished from the authorities just referred to in that the Commonwealth did not purport to engage the cleaning contractor. The cleaning contractor was engaged by Canberra United Masonic Temple Trust from whom the Commonwealth was a sub-lessee of Unit 5. Nevertheless, I do not think that, as a matter of principle, the Commonwealth can be regarded as having discharged its non-delegable duty to provide a reasonably safe system of work and a reasonably safe place of work for the plaintiff, by relying on the fact that the cleaning of the washroom was carried out not directly by its servants or agents, but by a contractor engaged by a sub-lessor. As a reasonable employer, the Commonwealth's duty to provide a reasonably safe system of work and a reasonably safe place of work included, in the circumstances, a reasonably safe toilet and washroom. The Commonwealth relied upon the sub-lessor to keep the washroom clean. The sub-lessor relied upon the cleaning contractor. This hierarchy of reliance did not absolve the Commonwealth of its non-delegable duty to ensure that reasonable care was taken by those carrying out the cleaning of the washroom where the female employees were likely to be during the course of their daily work. The question, therefore, resolves into one whether reasonable care was taken on the part of the cleaning contractor. The answer to that question will depend on a number of factors including the extent to which it was foreseeable by the cleaning contractor that persons in the position of the plaintiff were likely to suffer injury by slipping on the floor of the washroom if water which got on to that floor during the course of the cleaning operations was allowed to remain there. On that matter, it is clear that the likelihood of such injury was abundantly foreseeable.

18. The next question is what reasonable steps were taken to ensure that the floor was mopped up or otherwise made as dry as reasonably possible in order to avoid the likelihood of injury. In the present case the only evidence is that the cleaning contractor relied upon Mrs Fusan to make the decision about how often she should mop up the floor. Her decision was that it should be mopped up on Fridays and, if necessary, on Wednesdays. She received no instruction whatsoever from the cleaning contractor about how she should go about making that decision. She also decided for herself that it was necessary to clean the hand basins and surrounds daily. In those circumstances it was likely that water would get on to the floor as a result of her own activity. She should have been instructed to make sure that that water which got onto the floor in this way was mopped up promptly. She received no instruction and it does not appear to have occurred to her that there was even a possibility of the floor becoming wet in that way. I conclude on the balance of probabilities that there was a failure on the part of the cleaning contractor to take reasonable care for the safety of persons like the plaintiff who were likely to use the washroom after the cleaning operations each morning. In those circumstances the Commonwealth failed to ensure that reasonable care was taken by the cleaning contractor, and the Commonwealth is liable to the plaintiff for her injuries.

19. The plaintiff is constrained by the particulars of negligence furnished on her behalf. Most of the particulars furnished could not possibly cover negligence of the kind which I find to have been established. However, a liberal application of particulars (d) and (e) brings the case within the scope of the findings.

20. There is an allegation of contributory negligence on the part of the plaintiff. The onus is on the defendant to prove a lack of reasonable care on the part of the plaintiff for her own safety. It is alleged that the plaintiff failed to take that care by not being aware of the water on the floor and also by not reporting the presence of the water on the floor. The latter claim can be of no assistance to the Commonwealth, because the plaintiff fell before she even became aware of the presence of the water. I do not think in the circumstances the failure to notice it was a failure to exercise reasonable care. The plaintiff was doing nothing other than going about her business in the usual way. She was not in any undue haste. She did not do anything that a reasonable employee would not have done in the circumstances. She was wearing adequate footwear. The defendant has failed to discharge the onus and there will be no apportionment for contributory negligence.

21. I turn now to damages.

22. The plaintiff was born on 29 June 1939. She worked as a typist and book-keeper before her marriage in 1961. After her marriage she worked for brief periods as a book-keeper for jewellers. She joined the Australian Public Service in 1974 as a clerk, no doubt using her knowledge and experience of book-keeping and accounting practices. She was an acting Clerk Class 6 at the time of her injury. Her children were grown up by then and her husband had already retired from the Public Service for medical reasons. She had had a condition of vertigo prior to her injury, but this did not affect her earning capacity. It does not appear to have been aggravated in any way by the injury and I think that it may be left safely out of account. On the other hand, she had already developed cervical spondylosis in 1978 and between then and her injury had had a few days off from work for that condition and had received physiotherapy treatment for it.

23. Immediately following the injury, the plaintiff had to be placed on a stretcher and taken by ambulance to hospital. She was discharged later the same day, driven home by her husband, feeling stiff and sore in her back. She consulted her local practitioner a day or two later. She received physiotherapy treatment which ceased when she experienced numbness in her spine. She returned to work on 30 July 1984 but was suffering from headaches and neck pain by lunch time. She has not returned to work in the Public Service since that day. She has tried work in a jewellery business for a day or two since then. One occasion was in 1985 when she worked as a sales assistant but had to cease because of what she described as terrible headaches and backache. The other occasion was in 1987 when she was involved in packing and unpacking jewellery which produced similar symptoms. She has performed voluntary work at the Woden Valley Hospital and is able to do this without undue discomfort. She spends two hours a week in the wig library, helping patients choose and fit wigs. She has also done work of a voluntary nature with a facial service in the hospital, which involves putting make-up and cream on the faces of patients who wish to avail themselves of the service. She suffers continuing headaches and pain on bending as well as radiating pain down the right arm extending from the neck through the shoulder. She takes Panadine tablets, a few each week.

24. The plaintiff was compulsorily retired for her disability in August 1985. She said that if she had been able to, she would have worked until age 60. The circumstances of her employment and her injury were such that she now receives both superannuation and worker's compensation amounting to about $966 per fortnight after tax. This compares with the rate of salary payable to a Class 6 officer at the time of the hearing, which was about $762 per fortnight after tax. The plaintiff has little incentive to return to work. She has also been told that she is unemployable and it would be surprising if she believed otherwise. I think that in the circumstances the injury has to be regarded as having practically destroyed her income-earning capacity. On the other hand, it must be remembered that she was suffering from cervical spondylosis at the time of the injury and the award of damages must take into account the contingency that even without the injury her income-earning capacity may have been reduced by that condition.

25. Dr Danta had first seen the plaintiff in 1978 when she was suffering from vertigo and an anxiety state. However, he did not see her again until 27 August 1984, after her injury. She complained on the latter occasion of infrequent mild giddiness in the meantime. Dr Danta found marked stiffness of the neck muscles with limitation of movement and tenderness, similar to a whiplash and suggested conservative treatment whilst at the same time predicting that the pain would last for years. The next time he saw her, on 19 August 1985, there was no improvement, the return to work had aggravated the neck pain and pain was radiating over the right shoulder. On examination there was marked spasm of the neck muscles. X-rays taken some four years previously showed a C5/6 disc lesion.

26. Dr Danta referred the plaintiff to Dr Corry for rehabilitative treatment. Dr Danta reviewed the situation on 16 December 1987 at which stage there was continuing chronic pain which Dr Danta by then attributed partly to aggravated pre-existing cervical spondylosis. He felt that the effects of the condition would be permanent and incapacitated the plaintiff from working as a clerk if that required keeping the head in a bent position. He also felt that there was a psychological factor "adversely affected by chronic pain and chronic disability".

27. There was no report or evidence from Dr Corry, and I have no reason to reject the plaintiff's evidence that she carried out the rehabilitative steps recommended by him without any significant beneficial result.

28. Dr Raymond Newcombe saw the plaintiff on behalf of the defendant on 18 August 1987. He viewed the x-rays and came to the conclusion that the neck and arm pain related to aggravation of cervical spondylosis at C4/5 and C5/6 levels. He thought that the arm pain related to nerve root entrapment which might be relieved by surgery. Dr Chandran, who saw the plaintiff on reference from her solicitors on 23 June 1988 and 21 August 1990 was of the view that the aggravation of the pre-existing degeneration should have subsided by 1984. I reject the suggestion by Dr Chandran that the plaintiff's condition since 1984 has been due to pre-existing spondylosis. However, the value of Dr Chandran's opinion is that it emphasises that even without the subject injury the plaintiff was at risk of debilitating symptoms flowing from the cervical spondylosis.

29. Dr James Scott-Finlay saw the plaintiff on behalf of the defendant on 16 January 1990 and came to the conclusion that the plaintiff had had some neck strain but the degree of limitation was out of proportion to the type of injury. He thought that there was still a small amount of soft tissue damage but found it difficult to believe that the plaintiff could not work. He thought that "a little bit of psychotherapy and some counselling may be useful".

30. Dr Hugh Veness, a consultant psychiatrist, had a lengthy consultation with the plaintiff on 9 November 1990 and came to the conclusion that she was not suffering from any form of psychological illness and that the emotional symptoms she described were typical of a reactive depression resulting from the growing realization that there was no definitive medical treatment for her condition and that surgery was a questionable undertaking. In addition to having to cope with chronic pain and disability there was, above all, the loss of a worthwhile place in the workforce and the loss of the status and self-esteem that went with it. I accept the conclusion of Dr Veness, although it is not strictly speaking a matter for a person with the specialist skills and qualifications of a psychiatrist. The only suggestion that the plaintiff might experience some benefit from surgery is from Dr Newcombe, and I think the plaintiff's reluctance to submit to such surgery is reasonable.

31. In the light of the report of Dr Veness and the plaintiff's husband that the plaintiff is a nervous person and somewhat anxious about her case, I think that there is a likelihood of some slight resolution of her general condition once the case is over, but that it will have no effect on her incapacity for work.

32. As a matter of mathematics, it is agreed that a person working as a Clerk Grade 6 from the time of the plaintiff's injury to the time of the hearing would have earned a sum after tax of $143,392.27 and continued to have received $762 per fortnight after tax at the time of the hearing. It is possible that the plaintiff may have remained at Clerk Class 6 during the whole of the period if she had not been incapacitated, but allowance has also to be made for the contingency that she could have gone back to a lower rank. There is also the factor of some allowance to be made for disabling cervical spondylosis without the subject injury. I would therefore award the round sum of $124,000 for past loss of earning capacity to the date of hearing.

33. For loss of future earning capacity, I use as a guide the present rate of $762 per fortnight for a Clerk Class 6. Applying the 3 per cent tables to a projected period from date of hearing to the plaintiff's sixtieth birthday, a figure of about $133,000 is arrived at. I reduce this sum also for the uncertainty that the plaintiff would have continued at that grade and for the contingency of supervening debilitating cervical spondylosis and for this component I award a round sum of $100,000.

34. For pain and suffering and loss of enjoyment of life, I award a sum of $50,000 as to which I apportion $30,000 to the past. Interest will be awarded on the past component at the rate of 4 per cent per annum and the result reduced by half, having regard to the distribution of the pain and suffering over the period, giving a result of $9,600 for interest.

35. Out-of-pocket expenses are agreed at $1,908. The Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component is agreed at $27,635.95. There is no claim for interest on the past loss of earning capacity.

36. There is the suggestion of a claim for gratuitous domestic help according to the principle of Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. Bearing in mind that the plaintiff's husband was himself already retired from work at the time of the plaintiff's injury, I do not think that this claim can be sustained as in the particular circumstances of the case, household assistance rendered to the plaintiff is accurately characterised as a convenient rearrangement of domestic activities. It may have been reasonable for the plaintiff to engage paid outside help in the weeks or months after the initial injury. I have had regard to this factor in making the award for general damages. The total award, including interest, is $313,143.95 and whilst this appears to be somewhat on the high side for someone who suffered a soft tissue injury in a simple fall upon a washroom floor, it is in all the circumstances, in my view, a proper award.

37. In the claim brought by the plaintiff against the Commonwealth, I have found that the Commonwealth was in breach of its non-delegable duty to ensure that reasonable care was taken by those to whom the cleaning of the washroom had been entrusted. I have not found it necessary to decide whether or not the Commonwealth was in actual breach of its personal duty to take reasonable care for the safety of the plaintiff. It is sufficient to say that in the plaintiff's claim the evidence of prior complaints of slippery floors does not of itself prove negligence, and the lack of evidence of what the Commonwealth did in response to such complaints does not seem to me conclusive. Since the Commonwealth had no control over the cleaning contractor, a reasonable response would appear to have been to have passed on those complaints to the sub-lessor and that may have had no effect in reducing the incidence of risk.

38. These factors, however, assume greater significance in the contribution proceedings brought by the Commonwealth against the cleaning contractor. The very strictness of the duty of the Commonwealth to the plaintiff to ensure that reasonable care was taken by those to whom the cleaning was entrusted meant, in my view, that fairness to the cleaning contractor demanded that it be notified of any complaint about its activities which was likely to result in liability being incurred for damages sustained as a result of those activities. Put shortly, the lack of evidence on the part of the Commonwealth that it passed on those complaints to the sub-lessor enables the inference to be drawn that the cleaning contractor was deprived of an opportunity of responding to the complaints. If the complaints had been passed on to the sub-lessor, perhaps the sub-lessor would have been at fault for not passing them on to the cleaning contractor. However, the sub-lessor is not a party to the present contribution proceedings and there is no evidence that the Commonwealth passed the complaints on. In the circumstances, I find that it is just and equitable that the Commonwealth and the cleaning contractor share equally liability for the plaintiff's damages and costs.

39. Orders will be:-

1. Judgment for the plaintiff against the defendant for
$313,143.95.
2. Defendant to pay plaintiff's costs to be taxed and agreed.
3. Usual order as to interest consequent upon orders 1 and 2.
4. Judgment for the defendant against the fourth party for
$156,571.97 together with one half of the plaintiff's costs as taxed
or agreed.
5. Defendant and fourth party each to pay own costs in the
contribution proceedings.