Lam Sheung Moon 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

____________

BETWEEN

____________

Before:  Hon Fung J in Chambers

Date of Hearing:  8 December 2009

Date of Decision:  8 December 2009

Date of Reasons for Decision:  9 December 2009

________________________________

REASONS  FOR  DECISION

________________________________

1.The Plaintiff sought directions at the Check List Review for:

(1)  a second joint physiotherapists report as to the future physiotherapy requirements for the Plaintiff in the light her improved physical condition;

(2)  a rehabilitation expert report to address the future rehabilitation regime for living at home as opposed to in an institution.

2.I refused both reports at the hearing and now give my reasons.

3.The Plaintiff had a traffic accident when travelling on board an estate coach bus in December 2004.  She was thrown inside the cabin and sustained severe head injury (subarachnoid hemorrhage) and fractured right leg (tibia and fibula).  She lost consciousness and was in intensive care for 2 weeks.  Thereafter, she developed hydrocephalus (water in the brain) and needed ventriculo-peritoneal shunt (drainage), but the treatment was complicated by mechanical failure, recurrence of hydrocephalus and infection until subsidence in April 2006.

4.The Plaintiff has been jointly assessed by neurology experts Dr Gardian Fong (for the Plaintiff) and Dr Edmond Woo (for the Defendant) with joint reports dated 19 September 2006, 29 January 2008 and 13 June 2009 and a joint letter dated 11 April 2007.

5.Until January 2007, the Plaintiff was a severe tetraplegic ridden in bed.  She could not swallow and required feeding by nasogastric tube.  She also had double incontinence (partially in respect of urination).

6.In 2007, the Plaintiff started to improve.  She started to turn her head and raise her arms above head, flex and extend her elbows and thighs, getting up from supine into sitting position, and stand briefly with support of two persons.

7.The Plaintiff also had contracture of the knees and ankles.  In November 2007, she had tenotomy (surgical cutting of the tendon) and the tightness over the knees and ankles improved.

8.The Plaintiff emitted loud outbursts in conversation, and was aggressive to advances of physical contacts.  She has been receiving psychiatric treatment since November 2007.

9.In the latest joint report in June 2009, the neurologists agreed that the Plaintiff has regained good power in her extremities and there is no contracture.  She is ambulatory without aid though hesitant in gait and needs to hold on to railing on stairs.  She takes a stroll unaided for an hour every day in the park.  She has useful functions in her hands (brushing teeth, using chopsticks and doing buttons) and good mobility in her upper limbs though the left hand is a bit clumsy.  Here swallowing function is intact.  She sleeps from 9 p.m. to 7 a.m., but still has cognitive impairment, and irritable mood due to psychiatric problem.  Her continued incontinence and convergent squint (inward gaze) are result of her brain damage.  Her family reported little appreciable change in the last few months, and the doctors opined plateau in improvement.  She is on antispasmodic medication but there is no indication for future long term use.

10.The doctors agreed that the Plaintiff is dependant in most of her daily activities and needs supervision and set-up assistance for groom, bath and dress.  She is unable to take up any gainful employment.  She is now staying at the Tin Ka Ping infirmary (which allows permanent stay), but there is no compelling reasons for her to remain under institutional care, and should preferably return to a home environment.  There is no indication for any medical device, regular physiotherapy or occupational therapy.

11.The Plaintiff has been taking home leave from time to time, with support and assistance from her parents, brother and a domestic helper.

12.The Plaintiff is now 41, and her life expectancy was 10 in 2006, 20 in 2008 and 34.5 now.

Plaintiff’s submissions

13.Mr Ramanathan SC, for the Plaintiff, asked for a second joint physiotherapist report:

(1)  The intensive regime in the joint physiotherapist report dated 20 July 2007 was spent as it was based on severe restriction in mobility and cognitive functions;

(2)  A revised regime should be bespoken to preserve her ambulation and to guard against possibility of deterioration due to the improved life expectancy;

(3)  The neurologists were cursory dismissive of physiotherapist input and did not address the on going services need of the Plaintiff.

14.On rehabilitation expert, Mr Ramanathan submitted that:

(1)  Returning to home from infirmary residence requires bigger accommodation;

(2)  One domestic helper cannot be expected to reasonably and humanely undertake duties in respect of the Plaintiff’s future when her parents enter old age;

(3)  Although the Plaintiff does not require any mechanical medical device at the moment, why lies for the future should be looked into by the rehabilitation expert.

Defendant’s submissions

15.Ms Mok SC, for the Defendant, objected to both reports:

(1)  The neurologists agreed that the cognitive and physical deficits are neurological and not orthopaedic induced and no amount of physiotherapy or occupational therapy is going to reverse her condition;

(2)  The Plaintiff is fully ambulatory without aid save with hesitance in gait and the help she needs will be through domestic help;

(3)  The neurologist have been given detailed agreed instructions to  consider the various requirement of medical, paramedical, rehabilitation and/or nursing aid and the Plaintiff should not be allowed to reopen the subject upon unfavourable joint opinion;

(4)  Physio and occupational therapy are available at modest costs in Tin Ka Ping infirmary, and in any case, the Plaintiff has been uncooperative and aggressive towards the physiotherapist;

(5)  The Defendant have agreed all items and costs of consumables (e.g. diapers) save as to the multiplier.

Discussion

16.At this stage, I am not going to decide on whether physiotherapy, occupational therapy and/or alternative accommodation as such should be allowed, but simply whether there is sufficient evidence or materials for the trial judge to decide on the future care and needs of the Plaintiff.

17.The Plaintiff has much improved with relief of hydrocephalus.  The bilateral limbs contracture was treated with tenotomy and the treating doctors at Tuen Mun Hospital said her condition had improved and the neurologist confirmed that there was no contracture.  She walked in small steps due to hesitance rather than orthopaedic disabilities.  The residual disabilities are neurological in nature and the neurologists have advised against regular physiotherapy.  Be that as it may, there may still be room for exploration as to non-regular physiotherapy for enhancing wellness of the Plaintiff.  The existing joint physiotherapists report has set out the costs of physiotherapy in the private sector, and there is ample materials for the trial judge to take into account.

18.Mr Ramanathan referred to excerpts from the medical text Brain Injury Medicine Principles and Practice by Zasler, Katz and Zafonte appendixed to the joint neurologists report, and submitted that mobility and cognitive functions are the best guide to life expectancy.  Hence, the preservation of the Plaintiff’s ambulation is crucial to her longevity.

19.The Plaintiff is ambulatory without aid (though she takes small steps and needs accompaniment generally), and she is will-powered to be ambulatory for at least an hour daily.  Medical conditions and aging aside, there is no contra-indication to her being non-ambulatory.  If one were to leave it to any prediction, it should rather be the physician than the physiotherapist.

20.Ms Mok spoke of the modern approach of the Court to award such compensation as is reasonable and necessary in the circumstances, rather than to adhere to the rehabilitation regime by the expert.  I have looked at the existing joint physiotherapists report.  It recited the Plaintiff’s then severe disabilities and recommended the frequency for physiotherapy (and/or occupational therapy).  I am afraid that the conclusion is somewhat pro hoc ergo propter hoc rather than clinically analytical (save perhaps for the clinical experience holdall).  With much improved physical condition of the Plaintiff, it will not be difficult for the judge to work out, if so held, the reasonable requirement of physiotherapy outside the stricture of the neurologists’ joint opinion.  As to whether the Plaintiff will become more congenial to physiotherapy upon rapport with a fixed therapist, it is also a matter for the judge.

21.As to rehabilitation, Mr Ramanathan submitted that the ongoing services need has been overlooked by the neurologists. 

22.Future needs must depend on the present medical conditions and future prognosis.  Thankfully, the Plaintiff has improved satisfactorily, and her residual disabilities are neurological.  Improvement has plateaued without contra-indication of deterioration.  As such, any consideration of the need and quality of care is within the faculty of the trial judge.

23.There is no perceivable need for ambulation devices and it is common ground that the size of the flat is a factual matter for the judge.   In any case, whether it is fair to award a wheelchair in face of aging can be dealt with by a good measure of common sense.  As to whether it is fair just to provide one domestic helper, the doctors had been asked twice whether nursing or other care is needed and said no.  The incidence and quantum of the help is best left to the judge after hearing the Plaintiff.

24.In the event, both reports were refused.

Costs

25.I awarded summary costs of $85,000 ($60,000 for counsel and $25,000 for solicitors) to the Defendant for the Check List Review.

Mr Kumar Ramanathan, SC, instructed by Messrs Alan Wong & Co, for the Plaintiff

Ms Alice Mok, SC, instructed by Messrs Philip KH Wong, Kennedy YH Wong & Co, for the Defendants