Wong Siu Tong v. So Man Che and Another

HCPI 506/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 506 OF 2009

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BETWEEN

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Coram : Before Master Roy Yu in Chambers

Date of Hearing     :   8 December 2009

Date of Judgment  :   24 December 2009

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J U D G M E N T

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1.This is an application by the Plaintiff to adduce expert evidence of a rehabilitation consultant.  I believe most of the background is not in dispute and I would just recap what has been stated by Miss Loh, Counsel for the Plaintiff, in her skeleton argument: -

(1)  The Plaintiff Mr. Wong Siu Tong, now aged 48, suffered serious brain and orthopedic injuries in a traffic accident on 14 May 2008, as a result, he has been left in a minimally conscious state (as opposed to “unconscious” or in a “vegetative state”).  He claims in this action by his wife and next friend damages for personal injuries.

(2)  Judgment on liability was entered on 31 July 2009 leaving damages to be assessed.

(3)  At the last checklist review hearing on 2 September 2009, the Plaintiff sought leave to adduce expert evidence of a rehabilitation consultant and a physiotherapist in support of his claim.  The application was adjourned for argument which has now been fixed on 8 December 2009.

(4)  The Plaintiff pursues the application of rehabilitation consultant only.  The Defendants objected to the application.

2.It is not disputed that after receiving treatment, the Plaintiff has been discharged from hospital and is now residing in the Ap Lei Chau Home for the Elderly (“the Home”).  Medical evidence from neurologists was adduced and the two neurologists being Dr. Yu Yuk Ling and Dr. Edmund Wu respectively have visited the patient in the Home.  The joint medical report was produced as “CLH-1” to the affirmation of Chow Lai Han affirmed on 11 August 2009.  The doctors gave a brief description of the Elderly Home on page 5 of the report as follows: -

“The Ap Lei Chau Home for the Elderly is a nursing home.  There are 2 floors with many sectors.  A staff of 4 to 5 nursing aides look after each sector of about 13 inmates.  A medical doctor from the nearby Fung Yiu King Polyclinic visit once a week to attend to minor ailments.  Mr. Wong is assigned a cubicle of his own.  He sleeps on an air mattress over and an adjustable hospital-type bed.  He is completely dependent in all his activity of daily life.  He cannot turn in bed by himself; he is turned every 2 hours including at night.  He is bought out to sit on his wheelchair for 2 to 3 hours a day; in the act of transfer, the manual assistance of at least 2 persons is required.  He is showered on a commode chair on alternative days.  Physiotherapy performed by an in-house physiotherapist twice a week.  The family is content with the care and facilities of the nursing home.”

3.Doctors also recorded that the Plaintiff is taking traditional Chinese medication everyday while acupuncture is performed twice a week.  Members of the family visited him everyday spending 4 to 5 hours with him, usually in the evening, to assist with his care (particularly with limb stretching exercises and acupuncture).

4.The Plaintiff used to live with his wife and his daughter in a 300 square feet apartment.  The doctor also recorded the wish of the Plaintiff’s wife, the said Chow Lai Han, to bring Mr. Wong home.  She is a nursing aide to attend to handicapped children in one of the Tung Wah Group of Hospitals.  She felt that with the additional help of one more person, she will be able to attend his care at home.

5.The Plaintiff has sustained visual fixation.  He response to visual and auditory stimulation.  He is able to count simple numerals.  Both doctors agreed that Mr. Wong is now in a minimally conscious state. 

6.It is recorded that the Plaintiff has physiotherapy treatment twice every week.  Both Dr. Yu and Dr. Wu commented that there stands a chance for some further physical recovery in the next 12 months and the arrangement of physiotherapy twice a week should be maintained.  Both opined that the service of an occupational therapist is not necessary.

7.As to the wish of Mrs. Wong to move the Plaintiff home for care, the two experts have some slightly different opinion.  Dr. Yu accepts that the physical care provided by the Home is adequate and from this perspective, his stay at the Home is as good as in a hospital infirmary bed or at home.  But on the other hand, if a holistic approach is adopted, care at home had a greater advantage.  There will be more contacts with his family members and consequently more stimulation for his mind.  The physical care will probably be more timely.  Care at home will also save the considerable traveling time for his wife, daughters and sibs who have so far demonstrates their commitment to do the best for him.

8.Dr. Wu expressed the view that Mr. Wong is receiving optimal and satisfactory care at the Home.  The environment is clean and hygienic and is well-equipped for the basic medical, nursing and other supportive services.  It allows for permanent long-term stay.  The Plaintiff is properly attended to in all activities of daily life.  He is transferred onto the wheelchair 2 to 3 hours a day.  He sleeps on an air mattress.  He has no pressure sore, and there has not been any overt attack of pneumonia or urinary sepsis in the past few months.  He concludes that the care is satisfactory that is no medical reason why he should be moved from this institution or why he should be returned home.

9.The said Chow Lai Han, has filed two affirmations for this application.  I do not intend to repeat all the paragraphs.  The main complaint by Madam Chow is that the care and attention provided by Ap Lei Chau Home for the Elderly is inadequate.  It is not a hospital.  There is insufficient staff to take care of the residents there including the Plaintiff.  And the service of Mr. Wong is heavily supplemented by Mrs. Wong and other family members.  Madam Chow also claims that the Home does not provide the necessary medical and rehabilitation services and facilities required in the Plaintiff’s minimal conscious state.  It is submitted by Miss Loh that it is now one and half year pro-accident.  Pro-active rehabilitation program/treatment should be planned or implemented hopefully to further improve the Plaintiff’s conditions.

10.The application by the Plaintiff is opposed by the Defendant.  It is submitted by Miss Lee, Counsel for the Defendants that there is no prima facie case established for the expert evidence of an occupational therapist.  I presumed she meant rehabilitation expert.  She submitted that while Dr. Yu has mentioned that the resources required for home care should be advised by expert in this area, it is not prima facie evidence that such an expert is necessary.

11.Pausing here, Dr. Yu did commented in the report that a holistic approach served a greater advantage to Mr. Wong.  But the resources required for home care should be advised by expert in this filed.  Hence I read from his report that he is suggesting that while he advised for home care, the resources shall be advised by a rehabilitation expert or in most cases by an occupational therapist.

12.I did discuss with Miss Lee in court that, on a basis of this opinion, I can anticipate the Plaintiff would argue that home care is reasonable for the Plaintiff and would seek damages along that line.  If the opinion of Dr. Yu is accepted by the trial judge, the trial judge would have to access the damages on the basis of home care services.  If the trial judge does not have the available information on the costs of home care, the trial judge will have difficulties in granting any damages.  On that basis, Miss Lee in fact agreed that a report to comment on the resources required for home care is acceptable to the Defendants.

13.At this juncture, I invited parties to assist me on what are the issues that the Plaintiff really requires for expert opinion by a rehabilitation expert.  Speaking from personal experience, a lot of the rehabilitation or occupational therapist report are exceptionally long.  A few reports I read cover areas that they are not qualified to make comments on.  They have lengthy repetition of the medical opinion given and often attempt to give their own opinion as to the cause of the injury.  I believe in many cases, parties have simply agreed to introduce expert opinion by a rehabilitation expert or an occupational therapist, without giving some correct guideline to the rehabilitation expert or occupational therapist.  Accordingly, they wander into area that is not within their expertise, causing substantial delay in the preparation of the report and wasting costs unnecessarily.

14.I believe in all application for occupational therapist or rehabilitation expert report, which are non-medical in nature, the parties must identify the issue for such expert to comment before the court is going to grant leave for the expert report.  In fact, I read from recent case management direction given in general civil cases, parties are requested not only to identify the expert, but to define the issue.  I would refer to Practice Direction 5.2 paragraph 20.  Regarding expert evidence, the court will not give permission to a party to produce expert evidence unless that party has identified expert by name and field, and identify the issue to which the expert evidence will relate.

15.I am of course aware that Practice Direction 5.2 is not applicable to personal injury cases.  But the rationale behind the Direction should be borrowed in personal injury cases, especially for non-medical report evidence.

16.I also refer to the case of Lam So Chai v Cheung Sai Lui trading as Hoi Fung Stevedore and Transportation Company HCPI 360/2007.  In a judgment given by Mr. Justice Fung on 3 July 2009, when His Lordship allowed leave for rehabilitation expert, His Lordship commented that the reports are too long.  His Lordship said

“Obviously, the need experts base their opinions on the parties’ pleaded case and on the reports of the physicians, and express their views on the necessity of the special items.  There is no need to repeat extensively what has already been set out by others.  In this case, the Statement of Damages has conveniently pleaded particulars of the special items with reference to sections of Mr. Kwok’s report.  What Mr. Kwok could have done was to justify the Statement of Damages with his reasons, referring to other reports as is necessary.  The spirit of the Civil Justice Reform is that costs should not be incurred unless they are necessary.  It is quality and not quantity that counts.  I suggest that if the trend of excesses shall continue in future, the Master may consider imposing costs cap on the preparation of the needs report.”

17.I read from the said ruling of Mr. Justice Fung that there have to be guidelines for the expert.  In the said case, His Lordship suggested reference to the pleadings in the Statement of Damages.  That is often a very convenient place to identify the issues for comment and opinion by the non-medical experts.

18.With no disrespect, these rehabilitation experts are not medical expert.  Accordingly, any scheme of rehabilitation or treatment must be based on recommendation from doctor.  For example, a doctor recommend a patient that he had to rely on wheelchair for the rest of his life.  The rehabilitation experts are to comment on how he would best occupy his life on wheelchair.  This might include training to use wheelchair, modification of the living premises, and costs issue.  Hence the medical evidence would be another source to identify the issues for comment.

19.In the current case, the appropriate future treatment and care for the Plaintiff is to be and has been commented by the neurologists.  The only area that has to be supplemented by rehabilitation expert is the resources required for home care, and the costs, if the trial judge accept the suggestion of Dr. Yu’s holistic approach for future care of the Plaintiff.

20.If the instruction to expert could be well defined, the expert could focus on the issues.  And secondly, by limiting the scope of the occupational therapist or rehabilitation expert, the time for preparing the report would likely be reduced and their costs will be lower.  And for this case, I am not prepared to include a cost cap.  But I do not preclude that the PI Masters would consider cost cap in appropriate case in order to have a proper control of how the costs are to be incurred with the view that the justice is preserved but not abused.

21.I therefore grant leave to the Plaintiff to have a rehabilitation expert to comment on the resources required for home care as suggested by Dr. Yu.  Miss Loh further submitted that there is another area that they wish the expert to comment on.  What she wishes the expert to comment on is the adequacy of the service provides by the Home.  Miss Lee opposed saying it has been sufficiently commented by the two doctors that the services and attendance at the home for the elderly is sufficient.

22.I tend to agree with Miss Lee.  Nevertheless, I note that from the doctors’ report, they acknowledged the services of the family members.  It is not the position of the doctors that their assistance is not required.  On the basis that Dr. Wu’s opinion is adopted, the court will still have to look at the positions whether the services of the family members are necessary and if so whether it could be replaced by a private nurse or a domestic helper.  Alternatively, the rehabilitation expert may find that it is unnecessary.  Accordingly, the rehabilitation expert should be directed to comment on whether the manpower provided by the Home, including nursing service or quasi-nursing service, for the day to day live in requirement for the Plaintiff is adequate or not, and if not, what additional resources would be required.

23.As for cost of the report, if it is unreasonably incurred, application may be made under the new Order 62 rule 5(2) to to the trial judge to disallow the cost and in appropriate case, the Plaintiff may have to bear the Defendant’s costs.

24.That basically concludes my ruling.  I believe some discussions have started between the parties as to nomination of the rehabilitation expert.  There has been some discussion in court whether a solo expert is to be instructed.  I would invite parties to have some sensitive discussion and report within 21 days on the arrangement, bearing in mind that the date of examination by the rehabilitation expert should not be more than 2 months away from my judgment and they should be able to serve a report within 6 weeks given the issue to be covered by the report is pretty narrow.  If no agreement could be reached, the Plaintiff should set a checklist review hearing returnable before myself to give the necessary directions.

24.As for costs, the Plaintiff is successful in part of the application.  Given it is necessary to give various directions, I believe the fair order is costs of this application be cause in the assessment to tax if not agreed, with certificate of counsel.

25.Finally, I wish to thank counsels for their assistance.

Ms. P. LOH (instructed by) Messrs. Chan & Associates for the Plaintiff

Ms. C. LEE (instructed by) Messrs. Philip K.H. Wong, Kennedy Y.H. Wong & Co for the 1^st and 2^nd Defendant