LO LEUNG KWAI v. NEW WORLD FIRST FERRY SERVICES LTD

HCPI 271/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 271 OF 2008

____________

____________

________________________

REASONS  FOR  DECISION

________________________

1.  At the PTR, the Defendant suggested the supplemental joint occupational therapists’ report previously ordered be framed to include the consideration of the “pros and cons” of home care versus hospital care.

2.  The Plaintiff was a ferry crew member employed by the Defendant.  He alleged that in November 2005 he fell from a staircase to the deck below as, inter alia, there was no handrail at the top of the staircase, and the deck floors and stair steps were not kept safe from grease.  He was found unconscious, with spinal injuries and abrasions.

3.  The Plaintiff became tetraplegic and bed-ridden (paralysed lower limbs and extremely weak upper limbs and unable to sit unaided) with double incontinence.  He had tracheostomy and had been on ventilator.

4.  In March 2009, the Plaintiff was discharged from hospital, apparently due to bed space restrictions, and was offered the lower care institution at Wong Tai Sin Hospital (“WTSH”).  The family did not like WTSH, and he returned home under doctor’s sanction.  The family live in a 1,000 sq ft flat on Island south, and had a full time domestic helper and part-time Mainland trained nurse.

5.  After discharge, the occupational therapists have given a report on the home care requirements of the Plaintiff.

6.  Thereafter, the Plaintiff was re-admitted to Queen Mary four times, thrice for pneumonia, and once for Phenytoin (anti-convulsant) overdose.  In view of that, I ordered at the last PTR on 24 November 2009 a supplemental joint neurologist’s report to comment on institution care versus home care, and accordingly supplemental joint occupational therapists report on any home care requirements.

7.  In the supplemental joint neurologists report, Dr Yu Yuk-ling (for the Plaintiff) and Dr Huang Cheng-ya (for the Defendant) basically agreed that the matter of choice is between quality of life versus prolongation of life.  The risk to life is respiratory infection.  The Plaintiff might live longer if staying in hospital, and shorter at home.  That is not a choice the doctors are prepared to make.

8.  The Plaintiff is 58 years old.  Dr Yu’s estimate of life expectancy is 11 to 12.8 years, and Dr Huang 5.8 to 9.3 years.  However, they have not differentiated the estimates as to home versus hospital care.

9.  As I see it, the provision of suitable accommodation is really a jury question after considering all the circumstances of the condition and welfare of the Plaintiff, the interaction of the family he relates to, and the reasonableness of the costs.  It is not really for the occupational therapists to consider the pros and cons of home versus hospital care.

10.  Without affecting the ultimate decision of the trial judge, at the case management stage, I should ensure that sufficient materials be sought to enable the choice between home, hospital or the halfway house of an institution offering suitable care against respiratory complications.  Given the doctors have recommended WTSH, it should not be dismissed just because the family did not like it.

11.  Hence, I have ordered:

(1)  Enquiries with the Hospital Authority on availability of long term hospital accommodation for patients in the situation of the Plaintiff;

(2)  Supplemental joint neurologists report on differential life expectancies on the bases of home care versus hospital care (or some other institutions offering suitable care);

(3)  Supplemental joint occupational therapists’ report on:

(a)    alternative accommodation to home and hospital care for ventilator dependant occupants;

(b)   objective assessment of the facilities, environment, care and costs of the alternative accommodation (incl. WTSH).

Mediation

12.  Both parties have indicated no objection to mediation.  As such, I directed the Plaintiff that subject to approval of the Director of Legal Aid, the Plaintiff is to serve a Mediation notice as soon as practicable.

13.  Should the Plaintiff be unable to do so before the next PTR, the matter should be reported to the Court for further direction.

14.  The next PTR shall be on 27 April 2010 at 10 am.

15.  Costs be in the cause with Legal Aid taxation.