Lam Sheung Moon By Lam Bing Her Next Friend and Father v. Lau Wai Kin and Another

HCPI 710/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 710 OF 2006

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BETWEEN

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Coram :  Before Master B Kwan in Chambers (Open to Public)

Date of Hearing :  30 April 2009

Date of Ruling :  15 May 2009

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R U L I N G

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1.At the hearing of the Check List Review on 30 April 2009, a dispute arose as to whether the next joint examination by the respective neurological experts scheduled for June 2009 should take place at the Tin Ka Ping Centre (where the Plaintiff is now residing) or at the home of the Plaintiff.  In order to save court time, it was resolved that I would deal with this dispute on the papers.

Background

2.The Plaintiff was injured in a road traffic accident on 16 December 2004.  The Plaintiff was a passenger in a public light bus driven by the 1^st Defendant.  She was then aged 36, and working as a cashier.

3.She suffered rather serious head injuries, as well as some broken bones.  She was admitted to the Intensive Care Unit of Princess Margaret Hospital with a GCS of 7, where they investigated the extent of her traumatic subarachnoid haemorrhage.  After 2 weeks in Intensive Care Unit, she developed hydrocephalus.  The fluid in her brain had to be drained by a shunt.  Another major setback occurred when there was infection and mechanical failure of the shunt.  She was sent to the Tuen Mun Hospital and then to Pok Oi Hospital.

4.The neurological experts appointed by the parties Dr Guardian Fong and Dr Edmund Woo first examined her in Pok Oi Hospital on 13 September 2006.  Their description of her condition at page 4 of the joint report dated 19 September 2006 demands our sympathy.  In short it is the description of a totally helpless human being, without the ability to stand, walk, talk, eat or have any control at all of any of her bodily functions.

5.In their joint report dated 11 April 2007, the respective neurological experts had this to say:

“She is now in a minimally conscious state.  She has a severe tetraplegia with flexion contracture in all 4 extremities.  She is completely incontinent of stool and urine.”

6.The neurologists examined the Plaintiff again at Tuen Mun Hospital on 16 January 2008.  They found that she had

“made significant improvement since the last evaluation in September 2006.  She is not in a minimally conscious state but she still has emotional and cognitive impairment as a result of frontal lobe dysfunction, impaired dexterity in hands, gait disorder and double incontinence.”

7.At paragraph 5 of that report dated 29 January 2008, the experts said:

“With her current neurological disabilities, she should preferably remain in institutional care at a rehabilitation/convalescent unit of a Hospital.  However, if she makes further improvement in her emotional and physical state in the next 6 to 12 months, consideration can then be given for home care at which time the provision of domestic aids (including a domestic helper) to assist with her daily activities is prudent and reasonable.”

Consideration of the Written Submissions

8.When I made the decision to deal with this issue on the papers, I thought that the neurological experts had disagreed on the appropriate venue for the next joint examination.  It was not until I had read the written submissions by the parties that I realized the dispute was between the handling solicitors.

9.Since the neurological experts are to conduct the examination, their views on the choice of venue should be the primary and paramount consideration.  In the circumstances I do not have the answer to the question: Which venue for the 3^rd joint neurological examination did the experts choose, and why?

10.In the absence of any input from the neurological experts, I believe that the answers to the following questions will yield a just result:

(a)  Which venue for the 3^rd joint neurological examination would be more suitable or appropriate for the experts in terms of equipment, ambience or other considerations?

(b)  Does the residence of the Plaintiff contain features that are necessary for the neurological experts to examine or inspect before they could compile their report?

(c)  Which venue is more convenient for the Plaintiff, her family and/or helpers?

11.In answering the question “Which venue for the 3^rd joint neurological examination would be more suitable or appropriate for the experts in terms of equipment, ambience or other considerations?”  Regard must be given to the tests that are normally carried out in a neurological examination.  From common sense and my experience in reading neurological reports over the years, I will say that these are, inter alia:

· Tests of mental status as to orientation, time, place memory and so on;

· Testing of the function of some or all of the 12 cranial nerves (nerves that are directly connected to the brain);

· Testing of the motor and sensory nerves (the nerves that carry the impulses to the voluntary muscle, and looking for signs of muscle atrophy);

· Testing the reflexes;

· Testing the co-ordination, stance and gait of the patient;

· Testing the autonomic nervous system; and

· Testing the patient’s blood flow to the brain.

12.In the circumstances, it would be surprising if the neurological experts would opt for the forthcoming joint examination to be conducted in a private residence as opposed to a care home.

13.In answering the question “Does the residence of the Plaintiff contain features that are necessary for the neurological experts to examine or inspect before they could compile their report?”  If there had been some essential matter or feature the experts had to consider, surely they would have told the handling solicitors.  Absent any information, I am unable think of anything in the Plaintiff’s residence that would be essential viewing for the neurologists.

14.I am quite confident that the family would prefer that the joint examination be conducted at the Tin Ka Ping Centre where the Plaintiff is now staying.  Although she may be able to “walk” after a fashion, the logistics of arranging for her to be conveyed home simply for the neurological examination, and then conveyed back to the Tin Ka Ping Centre simply defies common sense.

15.I have considered carefully the reasons set out in the Defendant’s solicitors written submissions.  I cannot accept what has been stated therein.  The objective of the examination by neurological experts is to find out what her neurological state is.  It is not for the experts to list the equipment she will need if she returns to live at home.  That is the job of a rehabilitation or home care expert.  If, after the joint examination on 3 June 2009 the neurological experts conclude that the Plaintiff is fit enough to reside long term at home, then the Court will give leave to obtain a report from home care experts (hopefully a single joint expert).

Conclusion

16.The joint neurological report scheduled for 3 June 2009 shall be conducted in the Tin Ka Ping Centre.

17.It will not be appropriate for me to give Directions in relation to how the joint report is to be compiled since the neurological experts have made no proposals at all.  I shall simply wait to see the result of the examination on 3 June 2009.  I direct that the experts compile the joint report within 70 days, that is on or before 12 August 2009.

18.The parties shall fix a Check List Review date once the joint report is available.

19.The costs of this paper application shall be to the Plaintiff.  The parties should try to agree the costs prior to the adjourned Check List Review.  If that is not possible, then I shall assess the costs on a gross sum basis at the adjourned hearing.

Representation:

Ms. S.L. Yang of Messrs Alan Wong & Co for the Plaintiff;

Ms. L.Y. Wong of Messrs Philip KH Wong, Kennedy YH Wong & Co for the 1st & 2nd Defendants.