Cheung Tai Tai v. Nee Man Ping

HCPI 498/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 498 OF 2013

BETWEEN

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D E C I S I O N

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1.This is a personal injury claim and the plaintiff sought leave to instruct experts in occupational therapy, prosthesis and psychiatry.

2.The plaintiff is a 71 year old lady with a past history of stroke (with good recovery).  The current claim concerned a road traffic accident which resulted in, amongst others, a right below knee amputation.  The plaintiff has prosthesis fitted but also required a wheelchair.

I. Preliminary issues

3.During the Check List Hearing on 17 March 2014, Master Yu ordered the issue to be adjourned for argument at the current hearing, and further ordered “parties to agree a bundle of the disclose(d) medical reports, clinical notes that are relevant to the argument within 21 days before the hearing date…”

4.Such a bundle was duly agreed and lodged.  However, 4 days before the hearing, the plaintiff submitted, along with her Submission, a witness statement by Sukasih and an Affirmation of Liu Chin Chung.

5.The defendant’s Counsel, Mr Wong, objected to production of these evidence.

6.I have heard arguments from both Counsels.  Given that no leave had been granted to production of evidence other than the bundle of medical documents, I have asked that the Court could either disregard such evidence or adjourn the hearing for the defendant to put in evidence in opposition if needed.

7.Mr Sakhrani for the plaintiff opted for the former.  Mr Wong did not object to this but nevertheless agreed to the production of one of the exhibits in the Affirmation of Liu Chin Chung.  This was a report dated 8 April 2014 by Community Occupational Therapist Mr Wong Shui Sang.  I allowed this.

II. Issues in dispute

8.Mr Sakhrani submitted that the application was primarily for seeking occupational therapist expert evidence and he would not pursue seeking psychiatric and prosthesis expert evidence.

9.I will deal with the application for occupational therapist expert first.

10.Mr Wong objected to the need for occupational therapist expert evidence on the basis that there has been occupational therapy reports on the accommodation and that the existing orthopaedics experts had already commented on and adopted such recommendations.

11.In fact, the defendant was not aware until the hearing that the plaintiff has moved into a new housing which is about 100 square feet bigger than the old housing. Nevertheless, the plaintiff had also obtained a new occupational therapy report from Mr Wong Shui Sang on this new housing, and the recommendations were listed within.

12.Mr Wong submitted that this was very late in the proceedings and a new expert report would mean that all the previous orthopaedics opinion on accommodations would be wasted.

13.Mr Sahkrani submitted that there were new developments in the case: the fitting of a new prosthesis provided from the private sector (which the plaintiff, at this stage, appeared to be more satisfied with) and the possibility of using an electric wheelchair (raised by orthopaedics experts in the 2nd Supplemental Report) etc.

14.I agree that the recommendations for modifications by Mr Wong is likely based upon the plaintiff’s condition at the time of the report: i.e. that the plaintiff was not satisfied with the old prosthesis and was more or less wheelchair bound at home.  The home therefore needed to be modified accordingly.  I shall call this “scenario 1”.

15.However, with the new prosthesis and the possibility of a better fit etc., it may well be that the Plaintiff will be able to using it more at home and home modifications may well be different. I shall call this “scenario 2”.

16.“Scenario 3” will cater for the use of an electric wheelchair which may require other home modifications plus storage space because the wheelchair and charging equipment etc may likely be bulky.

17.Of course, it is for the Court to find at trial which one of these scenarios is likely and reasonable.

18.For example, “scenario 2” may depend on further information on the plaintiff’s fitting and likely rehabilitation with the new prosthesis in the future, and whether the Court will find that, given the orthopaedic experts opinion on the adequacy of the old prosthesis, the construction of the new prosthesis in the private sector is reasonable.

19.“Scenario 3” may also depend on whether the Court will find that use of an electric wheelchair (as well as the existing manual one) is likely and reasonable under the circumstances.

20.As such, the Court should have the benefit of expert opinion as to what reasonable modifications would be required for each scenario and the costs of such.  The report of Mr Wong Shui Sang, at best, is only addressing “scenario 1”. Further, the report appears to be very brief even when compared to the earlier report by another occupational therapist on the old accommodation.  I think the Court would be better assisted by a more comprehensive expert report addressing all 3 scenarios.

21.Mr Sakhrani also suggested the possibility of one of the plaintiff’s son (who suffered from mental disability) returning home.  This might raise the need for a further domestic helper and a larger accommodation.

22.However, I am of the view that these questions do not concern the expertise of an occupational therapist.  Instead, it will be up to the trial Judge to find if such an arrangement is likely and reasonable under the circumstances.  The occupational therapy experts should therefore not be instructed to opine on this.

23.I do not agree with Mr Wong that it is late in the proceedings for further expert reports.  I think that there are new circumstances in the case and if the plaintiff has been unhappy about the existing prosthesis, the Court should be open to consider the possibility of her finding a better one thus improving her quality of life.  The same argument applies to her possible need for an electric wheelchair.

24.As for the need for psychiatric expert report, I agree that there is no need as we have reports from her treating psychiatrist which showed that her long-standing condition has been essentially stable all along before and after the accident.

25.Mr Sakhrani submitted that he intended to call the prosthetist (who constructed the plaintiff’s new prosthesis) as a factual witness and would leave it to the defendant to decide whether he would seek an expert in this area.  Therefore, I need not deal with any application for instructing prosthesis experts at this stage.

III. Order

26.I would therefore allow leave for an occupational therapy expert to be instructed by each party, for a joint home visit to be arranged as soon as possible and for a joint expert report to be prepared within 63 days after the home visit.  The experts should opine, amongst others, on reasonable home modifications and costs in each of the 3 scenarios.  Alternatively, if the parties so agreed, I would allow leave for a single joint occupational therapy expert to be instructed instead.

27.As for costs, I am of the view that the need of this application arises out of new developments in the case.  Although I have allowed the plaintiff’s application, she was somewhat at fault for not informing the defendant of such developments in a timely manner as well as for submitting evidence without leave.  As such, I would award the costs of and incidental to this application be in the cause except that costs of and incidental to the witness statement of Sukasih and Affirmation of Liu Chin Chung be to the Defendant in any event to be taxed if not agreed, with Certificate for Counsel.

Mr Ashok K Sakhrani, instructed by Leung & Lau, for the plaintiff

Mr Wong Chi-kwong, instructed by Waller Ma Huang & Yeung, for the defendant