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. 845 OF 2006

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BETWEEN

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Before: Hon Fung J in Chambers

Date of Hearing: 25 January 2010

Date of Decision:  25 January 2010

Date of Reasons for Decision:  27 January 2010

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REASONS  FOR  DECISION

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1.The main issue at this Pre-trial Review is to determine the admissibility of the Homecare Assessment Report by Ms Flora Lee for the Plaintiff notwithstanding the same has been reserved by Master Kwan for determination by the trial judge.

2.I admitted parts of the report and struck out the rest.  I now give my reasons.

3.The Plaintiff was a warehouseman.  He was injured in 2003 when he was crushed between the container tractor and the trailer when the tractor was reversing to couple with the trailer.  His mandible (jaw bone), cervical spines (neck bones) and ribs were fractured.  He had cardiac arrest during emergency resuscitation resulting in hypoxic brain damage and neurological deficits.  He is unable to emit sound when he speaks as his throat airway is narrowed by depression (subglottic stenosis) and the vocal chord is paralysed.  He has to communicate through typing on a computer or by SMS on mobile phone.  He has a throat opening by tracheostomy for breaching but that did not cause the speech disability.

4.The Plaintiff is staying in his parents’ self owned public housing unit.  He is cared for by them, but would be alone at home at times.

5.There is some dispute as to the Plaintiff’s physical disabilities and living dependence.

6.Mr. Lam, for the Plaintiff, submitted that the Plaintiff is totally dependent on his parents for daily activities such as walking, toileting and grooming, and feeding.  He has 4-limbs tremors and truncal imbalance.  He has to rely on walking aids, and is totally dependent outdoor.

7.Ms Lee, for the Defendant, submitted that Mr Lam’s submissions were based on the 2006 report of Dr Peter Tio, the Plaintiff’s orthopaedic expert, which is out of tune with all the other relevant experts.

8.Dr Lau Hoi-kuen, the Defendant’s orthopaedic experts (reports in 2007 and 2009), stated the Plaintiff had no orthopaedic disabilities.

9.Dr Yu Yuk-ling, the Defendant’s neurological expert (report in 2006), stated the Plaintiff was largely independent but needed accompanying outside home due to unsteady gait.  And Dr Edmond Woo, the Plaintiff’s neurological expert (reports in 2007 and 2009), stated the Plaintiff was unable to resume pre-accident job but was able to undertake simple sedentary tasks with compromised performance.

10.According to Prof Peter Lee, the Plaintiff’s psychological expert, the Plaintiff had told him that he could eat, clean, take shower and manage his tracheostomy tube without assistance.  He could walk short distance with aids in unsteady gait, but needs wheelchair outside home.  He was scared of crowds and would lose co-ordination.  Prof Lee stated the Plaintiff was independent in most daily living.

11.Ms Flora Lee, the Plaintiff’s care expert, has rendered a report in 2008 and supplemental report in 2009.  She recommended alternative accommodation, purchase of a multi-purpose vehicle, carer, case manager and consumables.  She has also made recommendations in psychology consultation, physiotherapy, Chinese medicine and acupuncture, diet, otorhinolarynology (ENT), further education, marriage and children.

12.Mrs Shelly Chow, the Defendant’s expert, has rendered her report in 2009, but has apparently not commented on issues outside conventional home care.

13.The dispute as to the physical disabilities were put before  Master Kwan.  In her ruling dated 12 February 2009, Master Kwan stated that at 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 should it be ruled admissible in evidence (see paras. 6 and 7).

14.Since then, Master Ng considered that the admissibility of the home care report should be determined at the PTR such that final preparation of the case (in pleadings and evidence in reply, etc.) could be reigned in the proper confines.

15.Ms Lee, of counsel, sought to exclude the entire report of Ms Flora Lee on the grounds that:

(1)     There is no home care issue in the case as the Plaintiff is basically independent;

(2)     Ms Flora Lee’s report is based on information of the Plaintiff’s parents and lacks reference to the existing medical reports and/or independent assessment of the assertions and is of no probative value;

(3)     Even if the Court considers that a home care report is necessary, Ms Flora Lee’s qualifications are basically in nursing and case management and not in home care.

16.The Plaintiff has had mobility problem, the degree of which is best left to the trial judge.  As such, the usual evidence as to home care and ambulation is prima facie admissible.  

17.I allowed parts of Ms Flora Lee’s report on accommodation, transportation, carer and consumables and equipment notwithstanding the query on her qualifications by defence counsel.

18.In Lam So Chai v Cheung Sai Lui t/a Hoi Fung Stevedore & Transportation Co HCPI 360/2007 (3 July 2009), I had the occasion to consider the query to the qualification of a “rehabilitation expert”:

“13.   In cases where the plaintiff suffers impairment in faculties or mobility, and claims special aids and accommodation, evidence on the special needs, required space or alterations, and related costs are adduced.  Traditionally, such evidence has often come from occupational therapists.

14.    Occupational therapy is the practice of helping people to the day-to-day tasks that “occupy” their time, sustain themselves, and enable them to contribute to the wider community.  Therapists instruct those with permanent disabilities in the use of adaptive equipment, including wheelchairs, orthotics, and aids for eating and dressing.

15.    It should be borne in mind that rarely is the therapeutic value as such of occupational therapy in issue.  The reports are mainly market research on available choices and related costs of the aids and equipment, and the professionals who have experience in working with disabled persons give evidence on the needs and the relevant features.  Ultimately, the award will depend on the finding of the physical conditions of the plaintiff and the reasonable necessity and suitability of the items.  Hence, I think the substance of the opinion based on experience and research matters more than the qualifications of the experts and how they call themselves.”

and concluded that it is really a matter of common sense (or the lack of it).  I wish to add that, as a matter of general principle, the expert should not only refer to the options most advantageous to their clients or state of the art items, but should explore the full range of options with well grounded pros and cons such that the Court can make the right choice depending on the view formed of the Plaintiff’s conditions and reasonable requirements.

19.Back to the present case, Ms Flora Lee is a registered nurse, and has obtained degree qualifications in health services management.  Prima facie, one may expect persons of her background and experience to speak on the care and provisions for persons under disabilities.

20.I allowed those parts of Ms Flora Lee’s report on accommodation, transportation, carer and consumables and equipment.  The weight of the contents and costs are reserved to the trial judge.

21.As to the sections of the report on psychology, physiotherapy, Chinese medicine and acupuncture, diet, otorhinolarynology (ENT), further education, marriage and children, they were struck out as being clearly outside the purview of a home care consultant and/or already considered by experts of the respective faculties and/or beyond the beholder’s qualifications and experience and/or not necessary for the fair disposal of the case and/or saving costs and.

22.On case manager, Ms Flora Lee leapt out the clichéd call for a case manager where the Plaintiff apparently has some neurological deficits.  Earlier in the Mental Health jurisdiction, I had the occasion of considering the hiring of a case manager when the settlement sum had apparently included such expenses.  I said that the question of the case manager (in so far as it is relevant for the present purpose) presents itself as follows:

(1)     What services are to be provided by the case manager;

(2)     Whether a case manager is required to provide those services;

(3)     What are the alternatives;

(4)     If a case manager is required, whether a continual retainer.

23.Nothing has been said by Ms Flora Lee on what exactly the Plaintiff needs and the proposed case manager is to do.  Hence, that part is also struck out.

24.As to the criticism of lack of independent assessment, it is best left to the trial judge.   The care experts are not required to be called to give oral evidence as the choice will be quite obvious once the judge has decided on the physical conditions of the Plaintiff.

Costs

25.The Defendant was roughly 2/3 successful in its objections.  Hence, I ordered the Plaintiff to pay part of the costs of the PTR to the Defendant, summarily assessed as $17,500 for counsel and $3,500 for the solicitors.

Mr Simon H W Lam instructed by Messrs Andrew Chan & Co., assigned by the Director of Legal Aid, for the Plaintiff

Miss Christina Lee instructed by Messrs Philip K H Wong, Kennedy Y H Wong & Co., for the Defendants