Chan Kit Ho v. Wun Tak Shun and Others

HCPI 845/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. HCPI 845 of 2006

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Coram : Before Master B Kwan in Chambers

Date of Hearing :   16 January 2009

Date of Handing Down of Ruling : 12 February 2009

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R U L I N G

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1.The Plaintiff was a warehouse attendant aged 20 on 8 October 2003 when he was run down by a reversing tractor driven by the 1^st Defendant.

2.The plaintiff suffered extensive and serious injuries.  Reports from Orthopaedic, Neurological, ENT, Maxillofacial and Opthalmic experts have been obtained.

3.The present application by Summons dated 11 August 2008 is brought by the plaintiff for leave to adduce a report by Ms Flora Lee, described as a “Homecare Assessment Report” dated 25 January 2008.  The application is resisted by the three Defendants.

4.Counsel for the plaintiff’s case is that the plaintiff needs the Flora Lee report “to claim various items on future needs, as set out in the Revised Statement of Damages”.

5.The case for the Defendants is that (a) there is no issue on home care in this case; but, (b) if the court decides that advice from homecare is required, the court must consider whether Ms Flora Lee’s report is admissible as “an expert in home care”; (c) in any event the report of Ms Flora Lee has little probative value.

6.The relevant legal principle to be applied is stated by Mr Justice Suffiad in paragraph 20 of his Judgment in HCPI 322/2002.  There he explained that during the interlocutory stage the disputed report must only be “looked at on its face value, with the weight of the report being reserved to the Trial Judge”.

7.In that Judgment Suffiad J added that “the weight to be attached to the contents must be a matter for the trial judge should the report be ruled admissible in evidence”.

8.Therefore, at this interlocutory stage, it should not be necessary nor appropriate for me to discuss the contents of the report of Ms Flora Lee (“the FL report”) in any depth.

9.Before turning to the FL report, I shall give a summary of the plaintiff’s condition so that the submissions of the parties can be seen in context.

10.As far as can be ascertained, the plaintiff has completely lost his ability to speak due to the serious injury to his larynx.  Dr Au Siu Foon described the injury thus “…the combination of the above mechanism caused the paralyses of his vocal cords, subglottic stenosis, and tracheo-esophageal fistula.”[1]  The plaintiff communicates by head gestures such as nodding or shaking, or writing messages.  A plan to get the plaintiff to use a special valve to help him make sounds failed after he refused to use it.

11.The plaintiff has to suffer having a device called a tracheostomy inserted into the area of his throat.  The device needs to be properly cleaned every day.  Occasionally when sputum clogs up the airway of the tracheostomy tube, it needs to be cleared or aspirated.

12.Due to his fractured mandible and loss of teeth, the plaintiff has difficulty feeding.  He is unable to chew normally and there is always a risk of choking if the swallowed food goes down the tracheo-esophageal fistula or through the paralyzed vocal cords.

13.Dr Yu Yuk Ling states that “As a result of hypoxic brain damage, he has ataxia, generalized involuntary movements and mild neurocognitive and neurobehavioural impairments.”[2]

14.The plaintiff’s eyesight has been affected.  The cardiac arrest he suffered as a result of the accident caused anoxic brain damage, which led to his blurry vision.  The anoxic brain damage has also caused the involuntary twitches and spasms in his limbs.  The twitches and spasms to an extent affect the normal functioning of his hands and legs.

15.Based on the uncontroversial medical reports, I believe that it would be fair to say that:

(a)   The plaintiff is capable of feeding himself, but there is a risk that he might choke;

(b)   The plaintiff is capable of cleaning the tracheostomy tube by himself, but with trembling hands, he will encounter some difficulty performing this task;

(c)   The Plaintiff is capable of dressing himself, but with trembling hands, he will encounter some difficulty performing this task;

(d)   With difficulty in mobility, the Plaintiff might not be able to escape from the premises if there is an emergency such as a fire.

16.Counsel for the Defendant argued that the FL report was not necessary because “there was no issue on homecare arising”.  She relied on excerpts from the reports of various medical experts in support of the contention that “there was no issue on homecare” and submitted that, “where a person is independent in most activities of daily living”, there is no home care issue on which the court would require assistance.

17.On the issue of relevant expertise, counsel for the Defendants argued that: (a) Ms Flora Lee’s expertise was likely be in the areas of nursing and case management based on her CV; (b) there no mention in the FL report of any tests done, or of assessments performed; (c) there was no indication FL had read the various medical reports; (d) there was no indication FL had consulted the various medical experts; and (e) there was no evidence of any expertise anywhere in the pages of the FL report.

18.Counsel for the Defendants had prepared a chart (at paragraph 10 of the skeleton) purporting to show how few of the recommendations contained in the medical actually fell within FL’s areas of expertise.  She then submitted that the FL report could not be regarded as an “expert’s report”.

19.Expert evidence has always been placed in a special category by the Courts, for that reason, the over the years the common law has evolved exclusionary rules.  As the learned authors of the leading tome on Expert Evidence Freckleton & Selby stated in the two passages quoted below from Volume 1 of their work[3]:

“[1.0.10]  The best-known feature that distinguishes the evidence of the expert from that of the layperson is that the expert is permitted to offer opinions to the court as to the meaning and implications of other evidence.  As it is likely that such opinions may have a significant bearing upon the outcome of the litigation, the courts have long been concerned to ensure that those opinions are offered by reputable people following recognized disciplines of knowledge.”

“[2.15.20]  R v Turner [1975] QB 834 : An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.  If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.  In such a case if it is given dressed up in scientific jargon it may make judgment more difficult.  The fact that an expert witness has impressive scientific qualifications does not that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does. …”

20.In their textbook Freckleton & Selby give the opinion that no strict or formal criteria on the “qualification” of an expert has been set by the common law courts.  For instance, on page 24 the learned authors stated that “the question of whether the expert is to be permitted to testify in the form of opinions often devolves to the sufficiency and relevance of his or her specialized skills, rather than to any strict questions of definition.”[4]

21.On pages 24 and 25 of the textbook, the authors gave an example of the court accepting as “expert” a dog breeder, based solely on years of breeding, who had no formal qualifications even though they remarked on a trend of increased vigour in the application of the expertise rule by the courts.  So, it will not be possible for me to state at this interlocutory stage whether the Trial Judge is likely to decide the issue of FL’s expertise on qualifications, or experience or a combination of both.

22.The next question is to ask “What is the function and role of a homecare expert”?  “Homecare” is a new and developing growth area worldwide due to both the increase of senior citizens living on their own, and the decrease of institutionalized facilities that the community can afford to provide.  To my knowledge there is no decided case in Hong Kong on the necessary qualifications of a “homecare expert”.

23.Common sense dictates that a “homecare expert” is someone with special training into the needs and requirements of the injured, weak or disabled who live at home as opposed to an institution.  A “homecare expert” must be able to assist the court by providing an insight into those matters.

24.I do not agree with counsel for the Plaintiff when he submitted that the plaintiff needed the Flora Lee report “to claim various items on future needs, as set out in the Revised Statement of Damages”.  This appears to imply that the report of a “homecare expert” can be used to bolster and support the items claimed in the Plaintiff’s Statement of Claim.

25.I turn now to the contents of the FL report itself. In accordance with the principles in HCPI 322/2002, I will not discuss those contents in any depth.

26.The FL report comprises of 25 pages, excluding appendices. The appendices run from page 26 to page 51.  It comprises of 3 sections “A”, “B” & “C”.  In section “A”, FL deals with the circumstances of the accident, the injuries suffered, the treatment given and details of the Plaintiff’s family and background.  In section “B”, FL gives a detailed description of the Plaintiff’s present conditions.  In this part FL provides information inter alia on his daily routine, medication, hobbies and sleeping patterns.  In section “C” she sets out 11 categories of recommendations.  These recommendations are for (1) psychological treatment; (2) physiotherapy; (3) acupuncture & traditional Chinese medicine; (4) dietary consultation; (5) ENT Treatment; (6) transportation needs; (7) necessity for a 24 hour caregiver; (8) accommodation requirements; (9) education requirements; (10) requirement for a case manager; (11) “consumable equipment”.

27.At face value, an argument could be sustained that the report of FL alleged “homecare expert” would not be able to provide the court with any assistance or insight on the matters discussed in recommendations (1), (2), (3), (5) & (9) on the basis that FL does not have the requisite qualifications to advise in those areas, not being trained in education, ENT, Chinese Medicine, physiotherapy or psychology.

28.A similar argument could be made out in relation to recommendation (10).  A civil judge qualified to sit at High Court level ought not need any assistance from a “homecare expert” when he or she decides on the necessity of a case manager.  The judge will have a pool of experience to draw from, and may very well consider, on the basis of the poor performance of case managers appointed in the last 10 to 15 years that their work did not justify the drain on the estates. 

29.At face value, there is little in the recommendation made for the purchase of a motor vehicle in (6) that the judge will not be able to glean from the evidence on the whole.  Having read all the medical reports, and all the witness statements the judge will be able to form an opinion as to whether a person in the position of the Plaintiff really needs a private motor vehicle for his exclusive use, and a chauffeur (in the capacity as a caregiver) to drive him around in it.

30.At face value, there is little in the recommendation made for the purchase of a bigger flat in (8) that the judge will not be able to glean from the evidence on the whole.  Having read all the medical reports, and all the witness statements the judge will be able to form an opinion as to whether a person in the position of the Plaintiff really needs to have a larger and more user friendly home, living premises that will allow the Plaintiff to skate about freely on his computer chair.

31.Recommendations (4), (7) & (11) are arguably areas where a “homecare expert” with special training into the needs and requirements of the injured, weak or disabled who live at home can be of assistance to the trial judge.  I find that these are areas where a judge would not normally have the knowledge or insight.  I find that a judge would need help to decide on issues such as the special equipment needed by the Plaintiff; his special dietary requirements; and whether it is necessary to provide the Plaintiff with a full time caregiver.

32.The question whether FL has fulfilled her duty by providing relevant and useful opinions as a “homecare expert” in the areas referred to in paragraph 31 above will have to be considered by the Trial Judge.  However, I have noticed that on the face of it, the report did not give a balanced view, or provide the court with alternative recommendations.  For instance, it would be quite apparent to the trial judge that this Plaintiff, bereft of speech, will be in dire straits if the Plaintiff had to dial “999” in an emergency.  What I had expected to see from the homecare expert was a suggestion or recommendation on a technological device that would allow the Plaintiff to dial “999” to summon help in an emergency.  The FL report appears to imply that short of a live-in 24 hour caregiver, no other alternative was available.

33.In conclusion, on balance, and on the principles stated in HCPI 322/2002 that during the interlocutory stage “the weight of the report” should be “reserved to the Trial Judge”, I rule that the FL report just qualifies to be placed at Trial for the perusal of the Trial Judge.

34.I bear in mind the doubts I have voiced in this ruling as to the value of some portions of the FL report.  I am aware that the Defendants may complain that they will now be compelled to spend money and time to obtain their own “homecare” report.  I must remind the parties that a certain amount of protection on costs has already been afforded to the Defendants by paragraph 1 of the Check List Review Order dated 28 December 2007.  It was provided in that paragraph that the obtaining and serving of a report by a home care/rehabilitation expert was to be “at the Plaintiff’s own risks as to costs”.  It was envisaged at that Check List Review that, should the Trial Judge rule such a report to be unnecessary, the Plaintiff would be liable for all the wasted costs arising (including the costs incurred by the Defendants in obtaining a report to counter the FL report).

35.Directions arising from this ruling:

1. Within 14 days of the handing down of this ruling, the solicitors for the Defendants shall nominate their homecare expert in writing to the solicitors for the Plaintiff;

2. Within 14 days thereafter, the solicitors for the Plaintiff and the solicitors for the Defendants shall arrange for a date when the homecare expert of the Defendants shall be given an opportunity to examine the Plaintiff’s home, and interview the Plaintiff and all the members of the family who were interviewed by FL;

3. The homecare expert of the Defendants shall compile his or her report within 70 days of the date of the visit, and a copy of that report shall be served on the Plaintiff’s solicitors within that prescribed period;

4. Within 42 days of the service of the report of the Defendants’ homecare expert, the Plaintiff may obtain and serve a supplemental report by FL, commenting on the Defendants’ homecare report;

5. No further reports by any homecare expert may be obtained or adduced without the leave of the PI Judge;

6. The costs of these homecare reports are reserved to the Trial Judge in accordance with paragraph 1 of the Check List Review Order dated 28 December 2007, with certificate for counsel;

7. The plaintiff’s own costs will be taxed in accordance with legal aid regulations.

36.The Directions given in paragraph 35 above are nisi for 14 days from the date of the handing down of this Ruling.  If no application is made in writing within that period, the Directions shall be made absolute.

37.There shall be liberty to Apply in relation to paragraph above.

Representation:

Mr Simon Lam of counsel, instructed by Messrs Andrew Chan & Co for the plaintiff.

Miss Christina Lee of counsel, instructed by Messrs Philip KH Wong, Kennedy YH Wong & Co for the 1^st, 2^nd & 3^rd defendants.

[1] Paragraph 2 page 5 of report dated 8 January 2007

[2] Paragraph 23 page 10 of report dated 6 November 2006

[3] Expert Evidence by Ian Freckleton & Hugh Selby, Law Book Co. Practical Law Library © 1993 [ 6 v. in (Loose-leaf) ]

[4] Third Edition, Expert Evidence Law, Practice, Procedure and Advocacy by Ian Freckleton & Hugh Selby