Chan Fung Ting By Her Next Friend Leung Kin Fung Ringo v. Lam Chun Kei

HCPI 1147/2018

[2019] HKCFI 2336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1147 OF 2018

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Before: The Honourable Mr Justice Bharwaney in Chambers

Date of Hearing: 27 August 2019

Date of Decision: 27 August 2019

Date of Reasons for Decision: 19 September 2019

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Reasons for Decision

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1.This is an appeal from the decision of Master Roy Yu, made on 21 June 2019, refusing to grant leave to the plaintiff to obtain expert evidence from an occupational therapist/rehabilitation consultant and from an ophthalmologist. After hearing submissions from counsel, I allowed the appeal to the extent of granting leave to the parties to obtain a single joint expert report from an occupational therapist/rehabilitation consultant. After the parties’ solicitors had taken instructions, I was informed, by a joint letter from their solicitors, that the parties had agreed to jointly engage Mrs Shelley Chow as the single joint expert; and that they were in the process of agreeing the contents of a joint instruction letter within the parameters of the issues on which I had permitted the single joint expert to report. These are my reasons for my decision.

2.This is an action for damages for personal injury sustained in a traffic accident.

3.The plaintiff, a woman then aged 69, was a pedestrian who was severely injured in a road traffic accident on 3 February 2017 at Tai Kiu Road, Yuen Long when she was knocked down by a public light bus driven by the defendant.  She is now 72 years old.

4.She suffered from severe head injuries, including a skull fracture, subarachnoid haemorrhage and subdural haematoma. Emergency craniotomy for clot evacuation was performed on 4 February 2017. She also required a tracheotomy on 13 February 2017, as she had been under mechanical ventilation for a prolonged period of time. She required intensive care at the ICU/High Dependence Unit for more than 1 month during the post-operative period. The plaintiff’s condition gradually stabilised and she was transferred to a rehabilitation unit on 9 May 2017 for physical therapy, occupational therapy and speech therapy. The plaintiff was subsequently discharged back home on 21 September 2017 with continuing follow ups at the (1) neurosurgical clinic; (2) rehabilitation clinic; and (3) eye clinic for diplopia[1].

5.The plaintiff is mentally incapacitated and sues by her next friend, her son, who is her only relative in Hong Kong available to provide assistance to her.

6.The neurological experts engaged by the parties, Dr Yu Yuk Ling and Dr Kan Yiu Ting, agreed that the plaintiff’s life expectancy was 13.7 years from the date of their joint neurological assessment, and that she was expected to survive to the age of 84.7 years.

7.Both liability and quantum are in dispute.

8.As a result of the accident, the plaintiff allegedly suffers from the following conditions and disabilities:

(a) constant dizziness of severe intensity which may have been worsened by the diplopia;

(b) headaches;

(c) left sided weakness – she dropped objects from her left hand and could not use her left hand to assist her activities of daily living;

(d) upper motor neurone weakness in her limbs;

(e) thinking process and memory have been substantially impaired;

(f) diplopia due to bilateral sixth cranial nerve palsy; and

(g) behavioural and personality changes: she is easily irritable.

9.In their joint report, Drs Yu and Kan stated:

“Activities of daily living

11. She is largely independent in feeding, personal hygiene and toiletting, and partially dependent in showering, dressing, turning, transfer from chair to bed/toilet and vice versa. She can walk about 7 meters on level ground with the aid of a frame and assistance of one person. She walks indoors and has to use the wheelchair outdoors. She uses public transport for travel. She cannot attend to her finances, and her son helps her out.

…

Current accommodation

14. She and her domestic helper live in a public housing flat of about 150 sq. ft. There are a multi-function area (for living, dining and accommodation), a bathroom/toilet and kitchen. The equipment at home includes a hospital bed, wheelchair and walking frame. There is just enough space for the wheelchair to manoeuvre. Access to the corridor is good and the building is served by lifts.

Examination

15. …

Both upper limbs were spastic and weak, worse on the left. She is right-handed. In the right upper limb, motor power in the right upper limb was grade 4/5. She could write slowly and legibly (see sample in the MMSE report) and could hold light objects. There was no contracture. In the left upper limb, motor power was grade 3/5 proximally and grade 1-2/5 distally. There was flexion contracture of the ring and small fingers. Her left hand was practically non-functional.

The lower limbs were spastic and weak, more so on the left. Motor power was grade 4/5 on the right and grade 3/5 on the left. She walked for about 20 feet on level ground with the aid of a stick and one person assisting.”

10.Dr Yu assessed the plaintiff to be suffering from 73% Whole Person Impairment (“WPI”) whilst Dr Kan assessed the Plaintiff to be suffering from 57% WPI.

11.After referring to the plaintiff’s claim for alternative accommodation and the passages I have quoted above in the joint neurological reports, the learned Master stated:

“While I appreciate that in quite a number of cases occupational therapist has been giving opinion on the area that is required for a person, a patient, I also bear in mind that in this particular case that the plaintiff’s condition is not the serious type of disability like wheelchair bound or bed bound.

…

So it’s quite clear from this that she needs, first of all, an assistant. It may be a maid or maybe a nurse and, in fact, the expert have recommended the maid to continue. Now, once that is there any practical problem as to whether you can get a nurse or you need a maid may very well be a matter for the trial judge to hear the position and a quotation as to the wages of this helper or assistant or nurse would be a matter, I believe, parties could sensibly agree to give a range that is obtainable from the market. And as to the size, as I just mentioned, as I say, I am not ruling on this, but it seems practically there is no room and for two persons, because there needs to be a live-in maid and from what they said clearly it is necessary, a bigger house is necessary, and, of course, in litigation the plaintiff is not obliged to wait for the Housing Authority and if she has to look for private then she could always do that and argue for as damages as to the amount that she has to spend more now.

The question then rests is do we need the occupational therapist? I would have thought, with all this, it is just a matter of common sense to consider how many rooms, we need the kitchen and we need some drawings to show the place that she lives in, that is more comfortable that her frame and sometimes her wheelchair can pass around and go outdoors. That is, of course, I believe, common sense that since she is wheelchair bound she may need arrangement for vehicles, so there may be claims for transportation. And all this could come from evidence of her relatives who also take care of her or the plaintiff herself, because it seems she could still communicate with the experts and I hope she could give us evidence and, at the end, even if the occupational therapist is there, when we come to the pricing of a rented place, it is still a matter for parties either to agree or, if not, maybe for a surveyor to tell the rental, the average rental per square feet of a particular area and I suspect the defendant would not be disagreeing on that, rather the argument may be on the size, which I believe the trial judge, given what we have gone through, can decide how much over 180 that she is now living in is a sensible requirement and is being required because of the injury.

In those circumstances, I don’t think we need the assistance from the occupational therapist and I therefore also refuse this application, and that’s my ruling.”

12.In the course of the submissions before me, I expressed regret that my decision in Ng Wing Man, by his next friend Ho Siu Fun v. Everbest Port Services Ltd, HCPI 780/2012, 21 March 2013 had not been not cited to the learned Master.  In that case, the plaintiff had been diagnosed with organic brain syndrome and suffered from cognitive impairments such that he was a mentally incapacitated person and sued by his wife and next friend.  He was paraplegic, doubly incontinent, and reliant on a catheter.          The plaintiff had been admitted to SAHK Jockey Club New Page Inn, a centre for the rehabilitation of tetraplegics, on 16 May 2011 and resided there up till the time when the matter came before me. I noted that he might soon be discharged from this institution.  At the rehabilitation centre, he was provided with strengthening exercises for upper limbs, training on right hand function, activities of daily life training, cognitive training, and power wheelchair manoeuvring skill training.  He was also provided with a seat cushion, a power wheelchair, and a manual wheelchair.  I also noted from the report of Mr Cheng Tsz Chun, a registered occupational therapist, dated 29 June 2012 that:

“Progress and observation (on 30/5/2012)

Mr Ng showed improvement in his mental state. His orientation to time was satisfactory while orientation to place was still poor. Mr Ng showed improvement of controlling giggling. He could stop self giggling independently without verbal prompts.

Improvements in upper limb strength, grip and pinch strengths and activity endurance were observed. His left grip strength increased from 16 to 27kg while right grip from 8kg to 19kg. The left pinch strength increased from 4kg to 5kg and from 2.5kg to 4kg in the right.

Mr Ng managed to manoeuvre a power wheelchair independently for indoor and outdoor activities but supervision was needed in accessing unfamiliar locality and public transport.

Mr Ng could perform most parts of bathing and toileting on a commode chair independently, but mild assistance was needed to clean his back and dressing/undressing lower garment. Mild assistance with verbal prompting was needed to perform bed-chair and chair-to-chair transfer.”

I granted leave to adduce evidence from an occupational therapist/rehabilitation consultant noting that:

“13. Although expert evidence can only be adduced with the leave of court, and although the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues and that it is adduced in the most efficient and economic way consistent with the objectives of the CJR, it cannot be denied that, in a case such as the present, the court would need the assistance of the opinion of an expert occupational therapist and rehabilitation consultant who can advise on the therapy that the plaintiff needs to increase his strength and dexterity to perform, as much as possible, the activities of daily living; advise on the care regime, if any, needed by the plaintiff; advise on the aids and equipment, and other consumables required by him; and advise on the accommodation needs of the plaintiff including whether his current residential accommodation is suitable for him or not. I wholeheartedly agree with the lament of Seagroatt J in Wong Hin Pui v Mok Ying Kit and Anor, HCPI 763/1997, 21 December 1999 at §56 that there has been “excessive, expensive and wholly unjustified use of occupational therapists in personal injury cases”. However, in cases where the plaintiff is paraplegic or tetraplegic or where his mobility is severely compromised, a court cannot properly assess the quantum of damages without the expert assistance of an occupational therapist and rehabilitation consultant. It cannot be doubted that this is such a case.” [My emphasis]

13.I disagree with the learned Master’s assessment that the plaintiff’s condition is not “the serious type of disability like wheelchair bound or bed bound”. I refer to the opinions of Dr Yu and Dr Kan that she is partially dependent in showering, dressing, turning, transfer from chair to bed/toilet and vice versa; that she can walk about 7 metres on level ground with the aid of a frame and assistance of one person; that both upper limbs were spastic and weak, worse on the left, motor power in the left upper limb being grade 3/5 proximally and grade 1-2/5 distally; there was flexion contracture of the ring and small fingers and her left hand was practically non-functional; that the lower limbs were spastic and weak, more on the left, motor power was grade 4/5 on the right and grade 3/5 on the left.  Although she is not paraplegic, her mobility is severely compromised as is her ability to engage in the activities of daily life. The experts’ assessment of the plaintiff’s WPI has ranged from 73% to 57%.

14.Whilst the learned Master was right to conclude that there was practically no room in the plaintiff’s current accommodation for herself and the live-in maid, he erred in suggesting that it was a matter of common sense to consider how many rooms were needed and that such evidence could be given by her relatives. Such evidence is almost always given by an occupational therapist/rehabilitation consultant who has knowledge about the space required to accommodate special aids and equipment, such as hoists or wheelchairs, and the living space required reasonably by the plaintiff, his or her family, and live-in domestic helper or helpers.  The objective evidence from an expert on these matters would be of greater assistance to the court than the subjective assertions of relatives.

15.In my decision in Tsang Kwong v Wing Hing Air-Condition Engineering Ltd HCPI 729/2007, 3 December 2010, I noted that:

“3. Obviously, occupational therapists give expert opinions on areas which are within their expertise; for example, an injured person, by reason of his difficulties, may require specially adapted utensils for him to achieve the fullness of the activities of daily life. He might require specially adapted spoons, plates, cooking/eating utensils and the like, and those are areas which are within the expertise of an occupational therapist.

…

7. Mrs Shelley Chow in her report has already set out the square footage of suitable alternative accommodation, and she says that the plaintiff would need at least 600 square feet usable area should he and his wife decide to share a bedroom, and that he would need maybe as much as 650 square feet usable area should Mrs Tsang prefer to have her own bedroom.

8. It has been the practice for some time for parties concerned with such claims to obtain evidence of the rental cost of premises. Much of that evidence is available on the internet and posted by reputable estate agents, and although they tend to show the area in gross square feet as opposed to usable area, I think the general consensus seems to be that one has to take off about 20 to 25 per cent off the gross to make the conversion from gross to usable area, and in fact much of that evidence has been submitted to me in the defendant’s skeleton submissions, where the prices of different premises have been set out.”

16.Reliable evidence of the cost of suitable accommodation is readily available from the internet and can be adduced with little cost. It is for this reason that courts have stopped granting leave for surveyors to prepare valuation reports on the cost of suitable accommodation in personal injury actions.  In Wong Hon Wai v. Secretary for Justice HCPI 664/2009, 19 October 2012, I dealt with an application for leave to adduce expert evidence from a surveyor and I made the following observations:

“26. I come now to what I perceive to be the main application being made, which is for expert evidence to be adduced from Mr Ian Cullen, a chartered surveyor who, in the past, had provided many reports to the courts on to the location, size and current cost of renting apartments which were suitable to injured persons who were claiming damages for alternative accommodation. …

27. A sea change has taken place in the reception of this type of expert evidence. The current practice, and a practice which is consistent with the principles and the objectives of the Civil Justice Reform, is that such expert evidence is no longer generally admissible, save in truly exceptional circumstances, which this case is not. That change of practice is reflected in recent judgments of this court, and of Master Marlene Ng, the PI Master who has substantial experience in these matters.

28. In the past, parties often obtained surveyors’ reports on the size and cost of suitable accommodation and reports from architects on the cost of adaptations. This practice has been frowned upon as being unnecessarily extravagant, and wasteful of costs, given that such information is readily available on property agents’ websites, and given that the information from those websites is reliable, and can be used as true comparables because they are derived from actual transactions in the market place.”

17.Indeed, as I had noted in the course of submissions, nowadays, the cost of renting or purchasing premises is readily available in terms of the cost, per square foot, of the saleable area that is required. Thus, the learned Master also erred when he concluded that “when we come to the pricing of a rented place, it is … a matter for parties either to agree or, if not, maybe for a surveyor to tell the rental, the average rental per square feet of a particular area.”

18.For these reasons, I allowed the appeal to the extent of granting leave to the parties to obtain a single joint report from an occupational therapist/rehabilitation consultant. I directed that the scope of the report should be confined to the plaintiff’s need for alternative accommodation, the size of such accommodation, and what modifications would be required; the plaintiff’s needs for equipment such as wheelchairs and other aids and equipment to assist her to enjoy a reasonable amenity of life; the plaintiff’s needs for transportation; and whether or not the plaintiff needed occupational therapy and/or physiotherapy to increase and/or maintain the strength of her limbs and, in particular, her left arm.  The parties were in agreement that she did not require other consumables.  I also directed the parties to draw up a well-defined scope of the instructions to be sent to the single joint expert.

19.I shall deal briefly with the plaintiff’s appeal against the learned Master’s refusal to grant leave to adduce evidence from an ophthalmologist.

20.It was not disputed that the plaintiff suffers from traumatic bilateral sixth nerve palsy caused by the accident. The plaintiff’s bilateral sixth nerve palsy has affected her eye sight and she currently suffers from double vision and dizziness. Sixth nerve palsy causes problems with eye movement.  In their supplemental joint report dated 5 October 2018, Drs Yu and Kan stated that, “[h]er diplopia is due to traumatic bilateral sixth cranial nerve palsy, which is a neurosurgical disorder. … The diplopia is permanent and no further treatment can reverse it.  We have assessed the PIWP to be 8%.  Under the circumstances, we opined that assessment of her diplopia by ophthalmological experts is not required”.  However, it appears from the Medical Certificate issued by the Department of Ophthalmology of Tuen Mun Hospital dated 18 March 2019 that the plaintiff has attended the Tuen Mun Eye Centre for medical treatment from June 2017 to February 2019.  The presumptive diagnosis that was made was “bilateral CN VI nerve palsy, pending left estropia[2] correction”.

21.It was submitted that there was a clear difference of opinion between Drs Yu and Kan and the ophthalmologists of Tuen Mun Eye Clinic on whether the plaintiff’s diplopia could be cured and that an ophthalmologist would be able to provide cogent evidence and to assist the court to determine and assesses the plaintiff’s eye condition and treatment required.

22.I think there has been a misunderstanding between the role of an expert ophthalmologist and the role of a treating ophthalmologist. I agree with the reasons of the learned Master who refused to grant leave to adduce expert evidence from an ophthalmologist. It is the treating doctors who deal with the medical problems. After the treating doctors have completed their work, and when they have said that no further treatment is required, or, at least, that no further treatment is required in the near future, one reaches the point in the convalescence of the patient that the doctors term as “MMI”, which stands for maximum medical improvement. It is at that point in time that the parties would think about getting expert evidence to assist the court.  It is not the function of the expert witnesses to direct the treatment to be given.  It is the function of the expert witnesses to assist the court to deal with the legal issues that arise in the proceedings, including, if it arises, the issue of whether or not the treatments received were appropriate.

23.In this case, the experts have given a joint opinion, stating that the diplopia is caused by the injury to the cranial nerve, that it is permanent and cannot be improved, and that no further treatment is necessary. On the other hand, there is a medical report of a treating doctor suggesting that perhaps an operation could improve the double vision.  It does not help, at this point in time, to instruct an expert ophthalmologist.  Is he going to offer advice on treatment?  That is not his function.  One has to consider whether or it is appropriate for the plaintiff to undergo eye surgery in the light of the expert opinions of Drs Yu and Kan. An effort should be made to communicate their expert opinion to the ophthalmologist treating her.  He may have a different view. He might wish to consult the neurologist at Tuen Mun Hospital. If he proceeds with the surgery then, depending on its success or otherwise, the issue may arise as to whether or not the further operation was warranted. If the operation improves the situation, I am sure the defendant would be more than happy, as Master Yu himself expressed, to know that the plaintiff’s condition had improved.  At this moment in time, however, the application for an ophthalmologist to give expert evidence is premature[3].

24.After hearing submissions from the parties, I made an order that there be no order as to costs here and below. I further directed that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations with certificate for counsel.

Ms Vanessa Kwok, instructed by Tony Kan & Co, assigned by Director of Legal Aid, for the plaintiff

Ms Phillis Loh, instructed by Winnie Leung & Co, for the defendant