JENNY FUNG by her Father and Next Friend FUNG WAI HUNG ALEXANDER v. BELAIR GARDEN MANAGEMENT CO LTD AND OTHERS

HCPI 307/2010
(formerly HCA 1103/1993)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 307 OF 2010

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DECISION

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Introduction

1.  On 22 June 2016, the parties’ solicitors jointly wrote to inform the court they had not been able to agree on the questions to be asked and clarifications to be sought from their care experts Allison Saltrese (“AS”) (for the plaintiff (“P”)) and Sally Gooch (“SG”) (for the defendants (“Ds”)) (collectively, “Experts”) for the preparation of a supplemental joint care report (“Further Report”) (“Issue”), and to request for the court’s determination and directions on the Issue by way of paper disposal. For such purpose, the parties supplied their solicitors’ correspondence on the Issue for the court’s consideration.

2.  Time and again, the court has indicated it is inappropriate for parties to expect the court to read solicitors’ correspondence and then to try and ascertain on a do-it-yourself basis what precisely are (a) the issues and/or disputes to be resolved and (b) the parties’ respective contentions on such issues/disputes. This is especially so for joint applications for paper disposal as obviously the court will not have the benefit of oral submissions. Rather, it is the duty of the parties to make clear the factual basis (if required) for such paper determination by an agreed account or affidavit (with (if relevant) documents that are directly relevant to the disputed issue), clear identification of the precise dispute(s) in the joint application, and the parties’ respective contentions by succinct written submissions.

3.  On 27 June 2016, given the scope of the parties’ dispute on the Issue and the unfortunate approach adopted of asking the court to review solicitors’ correspondence, I directed the parties to attend an oral hearing on a date to be fixed to address on the Issue.

4.  At the hearing on 5 September 2016 (“Hearing”), I canvassed various matters pertaining to the Issue with the parties’ legal representatives, and hoped such exchange would facilitate better understanding of the proper approach to be adopted for the proposed joint instructions for the Experts to prepare the Further Report. The parties were directed to compile/agree on the revised list of questions for the Experts and to lodge the same for the court’s approval on/before 26 September 2016.

5.  On 27 September 2016, the parties’ solicitors jointly wrote to the court for extension of time until 24 October 2016 to agree on the revised list of questions for the Experts. I granted the requested indulgence.

6.  On 11 November 2016, the parties’ solicitors jointly wrote to inform this court that yet again they have failed to agree on the questions to be asked and the clarifications to be sought from the Experts for the preparation of the Further Report. The parties yet again asked the court for determination and directions by way of paper disposal on the Issue by reviewing P’s draft proposed questions (“P’s Draft”), Ds’ draft proposed questions (“Ds’ Draft”) and a bundle of solicitors’ correspondence between the parties (“Letters Bundle”).

7.  Regrettably, the joint letter of the parties’ solicitors gave no hint at all of the reasons for the parties’ 2^nd round of dispute(s) in respect of the Issue. Presumably, the court was expected to conduct a do-it-yourself review of the Letters Bundle to distill their differences and the reasons therefor. As explained above, this is not the function of the court. On 16 November 2016, I gave directions for the return of the Letters Bundle, and further directed P, the 1^st defendant (“D1”) and the 2^nd and 3^rd defendants (“D2/D3”) to respectively lodge/serve succinct written submissions of not more than 2 pages each to explain why the questions proposed by such party should be supported and why the questions proposed by the other party(ies) should not be supported. This court indicated it would consider whether the Issue would be fit for paper disposal upon receipt of such written submissions.

8.  I also took the opportunity to ask the parties to review their respective proposed questions for the Experts, and to remind them that “[when] seeking expert evidence, especially opinion on future matters, the questions put to the experts are normally open-ended issues (rather than on subjective assumed basis) so the experts are free to address those issues according to their skill, experience and expertise”.

9.  On 30 November 2016, P, D1 and D2/D3 respectively lodged their written submissions. Having read those written submissions, I am prepared to deal with the Issue by paper disposal with a caveat. The caveat is this: it is not for this court to draft or re-draft questions to be put to the Experts in either of the 2 versions put forward by P and Ds. In this Decision, I will deal with the disputed expert issues raised by the Issue and the questions for the Experts posed by the parties, and then it is for the parties to finalise the joint instructions for the Experts to prepare the Further Report pursuant to the guidance and limits set out in the Decision.

10.  I also add that by reason of the revisions to the original proposed questions in P’s Draft and D’s Draft, and the assistance afforded by the parties’ written submissions, I shall approach the Issue afresh without the straightjacket of any views expressed at the Hearing on previous versions of the questions to the Experts prepared by the parties.

11.  I note the parties agree that with the passage of time and the birth of P’s 3^rd child, the Experts should (a) review relevant updated materials as agreed to be provided to the Experts, (b) conduct update joint examination of or interview with P, her family members and/or other relevant persons, and (c) provide updated care assessment and costings. The focal dispute under the Issue concerns the formulation of questions to be put to the Experts in relation to future care and assistance. Before dealing with the specific questions proposed by the parties, it is necessary to re-state some broad principles in relation to care expert evidence.

12.  First, care experts are skilled and experienced healthcare consultants with expertise in arranging, managing and advising on healthcare settings/needs and care packages for, say, persons with physical/mental disabilities who require primary care and/or other assistive support. They are therefore experts with skilled knowledge and practical experience in projecting future care needs of such persons based on clinical diagnosis/prognosis by the medical experts and, more importantly, drawn from their own training and experience in dealing with healthcare requirements for such disabled persons. They are professionally placed to understand the future care requirements of such disabled persons as they age and/or as their disabilities/diseases progress in the relevant medical/familial/societal context. For example, care experts will be able to draw on their skill and experience to give opinion on whether there will be changes in the level of care required in future life and at what life stage or age such changes are likely to occur given the relevant disability/disease and circumstances of the disabled person in question. As another example, it falls within the expertise of care experts to opine on the reasonable and appropriate healthcare settings at different life stages for the disabled person (eg whether institutional care, living on his/her own or living with the family) given his/her personal, familial and societal circumstances. The social and other relevant services to which a disabled person is entitled and their impact on his/her needs are also matters of specialised knowledge of the care experts. Thus, it is for the care experts to address on these matters in order to opine on suitable future life care package based on primary materials made available to them and their own examination of and/or interview with the disabled person, his/her carer(s), his/her family members and other relevant persons.

13.  In my view, it is not for the court or parties to dictate “fixed” future scenarios to “box” expert opinion by care experts on future needs and assistance. It is necessary to bear in mind the respective functions of expert and judge. The care experts express their opinion within the particular area of their expertise on appropriate future care package(s) based on their assessment of available information in respect of the disabled person in his/her personal, familial and societal context, and also based on their training, skill and experience in dealing with such matters. But the judge weighs all facets of the case which includes evaluation of the expert opinion to make findings of fact, and naturally the parties’ function is to adduce evidence and persuade the court in making its adjudication on entitlement (if any) in relation to damages for future care. To properly assist the court, the care experts should not be inhibited in their opinion on future care needs by “scenarios” dictated to them for consideration.

14.  That said, it does not mean the care experts will formulate their opinion in vacuo. They do so in the relevant personal, familial and societal context of the disabled person. Here, the Experts are well aware of the factual matrix in respect of P’s past and current circumstances. They also have access to the factual witness statements, and they have interviewed the P and/or her family members to understand their concerns and aspirations. It is also evident from the Experts’ joint care report dated 15 November 2013 (“Report”) that the Experts are aware of the subjective views of P’s and/or her parents (“Parents”). Nevertheless, it remains for the Experts as experts to opine what is the appropriate future care package for P (and, where appropriate, with alternatives to take into differences between the 2 Experts and to help the court in making findings) from a professional viewpoint which may or may not coincide with the subjective views of P and/or the Parents. This is especially important for future care needs because care experts in their skill/experience may perceive required needs and/or non-requirements not readily understood by the layman.

15.  Secondly, if care experts are to be left to exercise their skill and expertise in offering opinion on the care package for future life (with alternatives where appropriate), how can the questions put to them in the joint instructions help them render their opinion in the joint expert report? In my view, the purpose of the instructions to the care experts is to help them understand what is needed of them to assist the court in its adjudication. Here, assuming P is able to establish liability and causation of loss against Ds, P’s future needs may span a relatively long period of future life. It is also a matter of common sense that P’s future needs may vary at different life stages. Thus, in respect of P’s future life, the Experts should be asked to identify the projected different life stages for P when her care needs may vary and transitions have to be made to different levels of care. Whilst the Experts may project P’s likely age or likely life event to mark these different life stages, it must be remembered that these different life stages are care-related,[1] and do not necessarily have to coincide with usual life stages of a healthy individual.[2] Once these care‑related life stages are identified, it is for the Experts to consider and debate the pros and cons of different care package modalities for the different care-related life stages of P’s future life. This is where the Experts’ skill and expertise become an important contribution to their opinion, which should not be cast in stages or “scenarios” drawn by the parties who are non-experts in this field. Indeed, the Experts in their skill and experience may disagree with “scenarios” drawn by the parties, or they may disagree with each other on how to draw the care-related life stages. Finally, the Experts (if they are able) are to opine on which care package amongst the alternatives canvassed and debated for each of the various care-related life stages is most suitable for P from a professional healthcare point of view.

16.  In approaching the above exercise, the Experts start with information-gathering in order to appreciate P’s circumstances in a personal, familial and societal context. The parties have provided and will provide them with some primary materials, and the Experts have conducted and will conduct detailed interviews with P and other relevant persons. They have also carried out and will carry out relevant research. Thus, the Experts are well-placed to take stock of P’s situation on a global and holistic basis. But this is only the starting point, and as they delve into the exercise described in the above paragraph in order to render care-related expert opinion, they will necessarily address the matters highlighted in that paragraph in light of (a) P’s personal and familial situation, (b) available societal and other support (eg government services) for P in the United Kingdom, and (c) the likely changes in care needs over future life as discussed above. These are plainly matters within the expertise of the care experts.

17.  Thirdly, the relevance of P’s children in respect of P’s claim must be properly understood. Care expert opinion should not, as submitted by P’s solicitors, be premised on the bald proposition that “[P] includes her children”. However, it is also not, as submitted by Ds, that P’s children should be excluded. The starting point is that assuming liability and causation of loss are established, damages are payable to P for her loss and damages. P’s children are not parties to the present action and do not have any independent claim for loss and damages. But that said, P’s children are not divorced from the factual matrix that the Experts should consider. Here, the Experts are well aware that P gave birth to 2 children, and they will soon be told she has a 3^rd child. The Report also states that it is common ground between the Experts that P will have difficulties (and will need assistance) in caring for her children, and I accept that if it can be shown such difficulties and needs are attributable to subject accident for which Ds are liable, P’s future needs in this respect may well be a head of claim as part of her loss. Thus, any compensation that may be made in this respect is not to compensate P’s children (although they may benefit from such care) nor to compensate the Parents (although they may also benefit from such care) but to compensate P who should receive an appropriate level of support to meet her difficulties in caring for her children.

Paragraphs 1-5 of P’s Draft

18.  Once the above matters are understood, I am unconvinced the approach adopted in Questions 1-5 of P’s Draft is appropriate, and I disagree with such questions. I am not persuaded that disallowing these questions will, as P’s solicitors suggested, render the joint instructions to the Experts “simplistic”. Instead, if the Experts are properly guided on their approach to giving opinion on future needs and assistance as explained above, I cannot see why their eventual Further Report will be unhelpful or filled with lacunae. This is not “shutting off reasonable and necessary evidence”, and it is even more difficult to see how by adopting the approach as explained above the court is seen to be “making important rulings on future care before trial” or leaving questions of future provision of care to be clarified or supplemented at trial.

19.  P’s solicitors suggested that formulating questions for the Experts involved 3 propositions: (a) P includes her children, (b) the Parents are not compelled to provide care, and (c) P needs round-the- clock care. For (a) above, I have dealt with this in paragraph 17 above. Anyway, under all alternative modalities of future life healthcare settings in the Report save for later life (ie Scenarios 1, 2 and 3), P is to live with her children. For (b) above, the Experts opined at page 74 in the Report that:

“None of the scenarios assumes continued care by [the Parents], enabling their relationship to improve with [P] by becoming more of a normal parent:child relationship.”

Thus, I do not understand the concerns of P’s solicitors in (a)-(b) above. For (c) above, this is plainly a matter for the Experts as to whether they consider P will require round-the-clock care for the whole of her future life. It is wrong to dictate that the Experts must make such assumption in lieu of their own expert views.

20.  P’s solicitors next suggest the Experts should be given set future milestone events or life stages. First, I do not understand the 1^st and 2^nd suggested milestone events that are premised on P’s father and mother being less able to provide care when they turned 65. Only Scenario 1 in the Report proposed P and her children live with the Parents. But the care package and costings for Scenario 1 are on the basis that the Parents would not be providing continued care (see above paragraph) and indeed the Experts agree that support workers are required to relieve the Parents of various responsibilities. Indeed, none of the identified scenarios in the Report assumed continued care by the Parents. Secondly, as said above, it is for the Experts to assess P’s situation to determine the appropriate care‑related events/stages. The other suggested milestone events of each of P’s children turning 18 years and of P herself turning 50 years and 65 years may or may not agree with the Experts’ expert assessment of the relevant care-related life stages. It is for the Experts to say whether in their expert view these events are pertinent care-related milestone events.[3] Plainly these are expert matters, and should be left to the Experts’ views.

21.  As explained above, it is for the Experts (a) to take a global view of P’s situation in the context of her relationship with her children, family and partner, (b) to map out her different care-related life stages and the likely timing/event for transition from 1 stage to another, (c) to identify the appropriate healthcare package for these care-related life stages with alternatives where appropriate, (d) to discuss the pros and cons for each of them in relation to P’s future life care needs and, where possible, to opine which one is likely to be appropriate for P and the reasons therefor, and (e) the details and costings for the care required for the various debated care packages.

22.  In view of the above, I prefer question 3(b) of D’s Draft. I disagree it is “over-simplified, too general and clearly designed to restrict the evidence to be given by [the Experts] rather than provide the Court with expert assistance and will lead to lacunae and omissions”. P’s solicitors suggest the Experts will be unable to deal the provision of future care for P comprehensively in the Further Report with detailed provisions for different future life stages if not instructed on those life stages as demonstrated by their broad-brush approach to future needs and assistance in the Report. In my view, this is no reason for either the parties or the court to overstep into the expert arena. Rather, the proper way is to guide the Experts on the scope of opinion required of them in respect of P’s future needs and assistance as explained above. It may well be helpful if this Decision is shown to the Experts for their consideration, which will remind them that expert opinion on P’s future needs and assistance should cover care-related stages of P’s entire future life. Although it is a matter for the Experts, I am sure when they are tasked with this exercise they will have in mind the impact of P’s children growing up and becoming independent, the Parents aging and passing away, and P herself getting old herself.

Paragraphs 6-9 of P’s Draft

23.  Turning to paragraphs 6-9 of P’s Draft, having now had the benefit of the revised questions and the parties’ written submissions, I consider there is a legitimate question to ask the Experts, but perhaps not in the way as put by P. The Experts’ common stance is that the 4 Scenarios for future needs and assistance in the Report do not assume continued care by the Parents, and indeed under Scenario 1 it was said 4 months would be required for the case manager to establish a therapeutic relationship with P and also with the Parents “to enable them to pass over responsibility for their daughter’s wellbeing”.

24.  However, there is also some suggestion in the Report that the level of care required under Scenario 1 was partly premised on the relative security of P and her children co-residing with P’s parents, and under Scenario 3 on the comfort of P and her children co-residing with P’s partner in a loving relationship. The Experts should be asked to explain:

(a)   whether the security and comfort P and her children will enjoy under Scenarios 1 and 3 is due to (i) the emotional well-being of being with close family members and/or loving partner or (ii) the care services they are expected to render for P and her children;

(b)   if the situation is (a)(ii) above, then whether (i) the care services the Parents or P’s loving partner are to render are those expected of ordinary parent-child or ordinary partner‑cohabitee relationship (eg to model good parenting) augmented by support workers or (ii) the care services will be more than (i) above;

(c)   if the situation is (b)(ii) above, then (i) what is the reason for such extended care services in view of the common stance as set out in paragraph 23 above, (ii) whether such care services should be costed, (iii) how the various healthcare modalities for P’s different care-related life stages set by the Experts as discussed above rely on such extended care services, and (iv) if so, what is the impact of eventual diminished provision or cessation of provision of such extended care services in view of change in age and circumstances of the Parents as well as those of P and her children.

25.  It appears that P’s solicitors fear that the Experts may ignore future life events, eg the Parents growing old and P’s children gradually gaining independence. These are of course natural phenomena, but care experts versed in future needs packages for persons with permanent disabilities that have to see them through their entire future life cannot be ignorant of these matters. In my view, it is for them to say from a healthcare perspective whether they are significant care-related events. To facilitate them to give their opinion in this respect, the Experts have been and will be supplied with primary materials to paint for them the factual matrix, and they have interviewed and will again interview the relevant persons to gather information for them to formulate their opinion.

Paragraph 10 of P’s Draft

26.  Paragraph 10 of P’s Draft is unnecessary as this has been addressed in question 3(b)(2)(c) of D’s Draft.

Paragraph 11 of P’s Draft

27.  Paragraph 11 of P’s Draft concerns Scenario 2 for future needs and assistance in the Report, ie P lives with her children elsewhere with the approbation of CAFCASS. The Experts do not recommend a scenario that allows P’s current partner to live with her and their children. So unless P is in a long-term loving relationship where her partner poses no risk to her and her children and they are able to model good parenting themselves, P will need 24-hour care. In that case, P would have to want to leave the Parents’ home enough to accept 24-hour care, and even then it will not be straightforward if P’s relationship with her current partner continues (or if it does not but he continues to want involvement in the children’s lives). On this basis, AS considers Scenario 2 remote.

28.  As to paragraph 11 of P’s Draft, it is plain that for Scenario 2 SG’s employment model and rates envisage that 24-hour care means 1 carer to be at P’s home all the time, and such care service is to be provided by a team of 6 carers to be directly employed. Plainly, the model envisages that care services are to be provided on shifts by 6 carers. I disagree with the question raised in paragraph 11 of P’s Draft.

29.  I bear in mind that AS says this scenario is remote. That being the case, the Experts should take this further opportunity to review additional materials to be provided by the parties and to interview P and other relevant persons to comprehensively consider the realistic “scenarios” that are appropriate for P.

Paragraphs 12-14 of P’s Draft

30.  I disagree with paragraphs 12-14 of P’s Draft. AS’ estimate for 24-hour care is covered by shifts because her model requires a specialist support agency to supply specifically recruited support workers. However, the costings at Appendix G of the Report are not about shifts but about calculations of cost outlay for support workers to provide 24‑hour care (whatever may be the shift periods). Hence, the costings were premised on the different rates for different periods, ie £14.50/hour for “Monday – Friday 08:00 – 20:00”, £17.25/hour for “Monday – Friday 20:00 – 22:00” and £65.00/night for “Monday – Friday Sleep-in Allowance”. The same rationale applies for costings for weekends. AS had already made provision for costings under Scenario 2.

Paragraph 16 of P’s Draft

31.  I note that in respect of Scenario 1, SG considers that services of a case manager will be required for life. AS considers that given the history and challenges that have arisen in P’s life so far, the level for case management needs to be higher than what SG’s recommends. Hence, it logically follows from AS’ remark that P will likely need case management services for life at a higher level. But then, AS’ costings in Appendix G is merely based on a period of 6 months to prepare P for living independently.

32.  In my view, it is proper to ask AS to clarify whether her opinion is that P will require long term case management services as implied in her observation at page 75 of the Report or whether P will only require start-up case management services for 6 months. If it is the former, then AS should state clearly her views on the extent and timing of the services required and the costings therefor.

Conclusion

33.  Given the above analysis, the parties should be able to finalise the questions for the Experts. As said, it is not for this court to draft or revise the joint instructions to the Experts. I therefore make the following directions:

(a)   within 14 days from today, the parties shall compile and agree on the questions to be put to the Experts for their preparation of the Further Report;

(b)   the parties shall dispatch the joint instructions to the Experts for preparation of the Further Report on or before 3 February 2017;

(c)   in the further joint instructions to the Experts, the parties shall jointly set a deadline for the Experts to compile the Further Report (“Deadline”);

(d)   paragraphs 6-7 of my order dated 26 January 2016 do stand;

(e)   the parties shall on or before 10 February 2017 jointly write to the court on the following:

(i) state whether the directions in sub-paragraphs (a)-(c) above have been complied with;

(ii) state the Deadline in sub-paragraph (c) above;

(iii) propose a date or time period for a further directions hearing before this court or a further joint written report to this court, whichever is appropriate; and

(f)   propose all other necessary and appropriate case management directions.

34.  In respect of the Deadline, the court places good faith reliance on the parties to specify the earliest practicable deadline. Bearing in mind the Experts are overseas, and the interview with P and other relevant persons will be held overseas and has to be arranged, this court has refrained from imposing any particular deadline, and leaves the matter to the good sense of the parties. However, parties are reminded of paragraphs 75-78 of Practice Direction 18.1, and the court may vary any committed date for compiling expert reports if the circumstances require.

35.  As to costs, both P and Ds have succeeded to some extent on the questions to be put to the Experts. However, some costs are unnecessarily incurred as explained in the earlier part of this Decision in relation to the joint application for paper disposal. In the circumstances, I grant a cost order nisi that 75% of the costs of and occasioned by the applications in respect of the Issue be costs in the cause, and P’s own costs be taxed in accordance with Legal Aid Regulations.