WONG HON WAI v. THE SECRETARY FOR JUSTICE

HCPI 664/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 664 OF 2009

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BETWEEN

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D E C I S I O N

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1.  These proceedings arise out of a tragic accident that occurred at a public swimming pool on 27 October 2005, a few days after the plaintiff’s 17^th birthday.

2.  Apparently, he dived into the shallow end of the pool, head first, such that his head struck the bottom of the pool, and he suffered a fracture/dislocation at the C4/5 level of the neck.  He is now quadriplegic.

3.  His condition, as noted in the report of Dr Brian Choa dated 21 October 2010, was that his head was normal, that he had mild discomfort on palpitating his neck muscles, and that, as far as upper limbs were concerned, power was very good to normal in C5 and C6 innervated movements, including shoulder girdle, elbow flexion and wrist extension on the radial side.  Myotomes from C7 down were completely paralysed.  Sensation was intact at C5, and partially retained at C6, which includes the thumb and adjoining forearm.  There was little significant difference between the two sides.

4.  He was completely paralysed and power was zero in all muscle groups in his lower limbs. Sensation was totally lost over the whole of the legs and feet.  A suprapubic urinary catheter was in position.  Essentially, he suffered paralysis of all four limbs which emergency surgery could not prevent.  His residual deficits included total paralysis of his lower limbs, total loss of control of his bladder and bowels, and total paralysis of his hands and fingers.  He has been left with power in the upper arm muscles.

5.  He has a very positive outlook and has taught himself to maximise the function of his remaining abilities.  He had expressed an intention to study further, and Dr Choa noted that it was difficult to predict, at that time, if it was realistic to expect him to be able to find remunerative work.  Even if he did so, he would be greatly handicapped by a slow rate of work, and a permanent loss of earning capacity of 80 to 100 per cent was expected.

6.  Future treatment would be directed at prevention and treatment of infections, chest and urinary in particular, and pressure sores.  The plaintiff had been very positive in developing strategies to prevent them himself.

7.  It is against the background of the severe injuries and very substantial disability suffered by the plaintiff that the present application before me must be reviewed.

8.  There have been various checklist reviews since the commencement of proceedings, and directions have been given for experts on liability, and directions have also been given for experts on quantum, and these have been followed with the result that a substantial number of reports have been prepared and are available to be adduced in court.  They include the report of Dr Brian Choa, to which I have just referred to.  There is a joint report, an occupational therapy and rehabilitation expert report dated 26 May 2011 prepared by Ms Sharon Haarsma and Mr Andrew Kwok, appointed on behalf of the plaintiff, and Dr Cecilia Li, appointed on behalf of the defendant.  This is a substantial report and it is by reason of the contents of this report that a number of these applications have sprung up and are before me.

9.  In addition, there is a joint physiotherapy report of Ms Jane Gorman, instructed by the plaintiff, and Mr Stephen Wong, instructed by the defendant, dated 27 March 2012; and single joint expert reports of Dr Kwok Tin-fook, who is a urologist, dated 27 March 2012, and from the clinical psychologist, Dr Peter Lee, dated 27 March 2012.

10.  At a checklist review on 18 June 2012 before Master Ng, she directed, in addition to making various orders and directions, that the case be adjourned for a callover hearing before me as the PI judge in respect of, inter alia, the following issues:

(1)   whether leave should be granted to the plaintiff to adduce the following expert medical evidence at trial:  an occupational therapy specialist in vocational training and work capacity evaluation, neurosurgery, orthopaedics and pain management/ anaesthesiology; and

(2)   whether leave should be granted to the plaintiff to adduce expert evidence from a chartered surveyor and architect on the issue of alternative accommodation at trial.

11.  I first deal with the application for additional quantum, medical and quasi-medical, experts’ evidence.

12.  The request for a specialist in vocational training stems from the observation of Dr Cecilia Li in the joint report, and I quote from page 33 of that joint report, where she said:

“As recommended, the plaintiff should be assessed on his work readiness by a professional occupational therapist who is expert in vocational rehabilitation and work capacity evaluation. Hong Kong Workers Health Centre would be able to offer professional advice and guidance on work training and evaluation. The centre also offers support for job placement and vocational counselling by professional social workers and therapists.”

13.  The plaintiff’s legal advisers have seized upon that statement to make this request.

14.  It seems to me that the application in this regard is misconceived.  The understanding that I get from the report of the occupational therapist and rehabilitation expert is that they are recommending, for the benefit of the plaintiff in helping him to maximise his working capacity, that he would benefit from the services of an expert in vocational rehabilitation and work capacity evaluation. 

15.  Therefore, this report should translate into a claim for the cost of such services, in the same way as an expert report suggesting that the injured plaintiff would benefit from physiotherapy or some other type of medical treatment.  A report and a recommendation of this nature should translate, therefore, into a claim for the cost of such services as part of the future loss and expenses claimed.  There is no need for the person providing such services to give expert evidence in court on the matter.  The expert evidence is already before the court from the rehabilitation experts.

16.  I do not quite understand the basis upon which the plaintiff seeks expert evidence from this field.  The recommendation is in the nature of the provision of future “treatment” for the plaintiff, not a recommendation that the court would benefit from expert evidence from a vocational therapist.

17.  For these reasons, I dismiss this specific application.

18.  In the same way, the claim for further expert evidence in the field of pain management arises from an observation, again of Dr Cecilia Li in the joint occupational therapy and rehabilitation expert report, in relation to the pain suffered by the plaintiff across his shoulders and his upper limbs.  It is stated in the report that this occurs when he attempts some upper limb activities such as feeding for longer periods of time, or when he tries to lift heavier objects.  He also experiences neck pain when lying in bed for extended periods of time or when sitting in his chair.  Additionally, he experiences pain at mid-chest level, and it is suggested that this might be due to the side support of the wheelchair being too high and rubbing on the trunk.  No pain medication was used at this point in time and physiotherapy has assisted in the reduction of pain in his neck and shoulders.

19.  In relation to this, Dr Cecilia Li has commented, and I quote from page 20 of the report that:

“The pain reported by Mr Wong may be due to a lack of exercise and active movement which could possibly be improved by a regular programme of stretching, manipulation and regular exercise through attending the outpatient physiotherapy at Tseung Kwan O Hospital. The intensity and severity of pain of Mr Wong was not quantitatively measured during the assessment. It is advisable to consult an orthopaedic surgeon to determine the presence of musculoskeletal causes of pain in order to further address this concern.”

20.  Here again, the suggestion of a consultation by an orthopaedic surgeon is a suggestion of a consultation for the purpose of treating the plaintiff’s condition, and that, in my view, ought to have been followed up during the plaintiff’s visits to the Department of Orthopaedic Rehabilitation at Tai Po Hospital. 

21.  The latest medical report that I have access to, from that department, is dated 9 September 2010 and was prepared by Dr Chan Wai Sing, who is an orthopaedic specialist, and the last paragraph of that report stated:

“Mr Wong was followed up at the Paratet Clinic at Tai Po Hospital after discharge on 3 June 2008, 16 September 2008, 9 December 2008, 16 June 2009 and 15 December 2009. He was last seen at our paretic clinic on 15 June 2010. He continued to be cared for a domestic helper and was still receiving day rehabilitation training at New Page Inn.”

22.  New Page Inn, apparently, is a facility at Ma On Shan which is partially funded by the Jockey Club to provide rehabilitation services to paraplegics and quadriplegics.

23.  The report of Dr Chan Wai Sing continued as follows:

“He had minimal pain and limb spasticity problems. His urinary bladder was cleared by intermittent catheterisation performed by his domestic helper. He did not have attacks of urinary tract infection and did not develop pressure sore. He will be reassessed in our clinic at the end of 2010.”

24.  Just as the first application before me was misconceived, so is this one.  The proper course to have taken was for this matter to be raised by the plaintiff to his treating doctor at the Paretet Clinic and for treatment notes from them to be obtained and, if those treatment notes indicated that some further specialist treatment should be sought for the plaintiff, then that ought to have been followed, and if such treatment had to be sought and obtained over a long period of time, the reasonable need for such treatment could be the basis on which a claim for damages for future loss and expenses could have been advanced, for the cost of such specialist treatment, from an orthopaedic specialist or other specialist.

25.  There is simply no basis to come to court on this material to ask for an expert report to be provided.  The judge does not need treatment from this expert; the plaintiff does, and the medical expert should be giving that treatment as a treating doctor, not as an expert witness.

26.  I come now to what I perceive to be the main application being made, which is for expert evidence to be adduced from Mr Ian Cullen, a chartered surveyor who, in the past, had provided many reports to the courts on to the location, size and current cost of renting apartments which were suitable to injured persons who were claiming damages for alternative accommodation.  I also have before me an application is in respect of an expert report from Mr Joseph Kwan, an architect formerly of Rehabaid and Hong Kong Polytechnic University but now in private practice, who, on many occasions in the past, had also provided reports to the courts on the nature of the adaptations that had to be effected to the accommodation to be provided to severely disabled persons, and the cost of such adaptations.

27.  A sea change has taken place in the reception of this type of expert evidence.  The current practice, and a practice which is consistent with the principles and the objectives of the Civil Justice Reform, is that such expert evidence is no longer generally admissible, save in truly exceptional circumstances, which this case is not. That change of practice is reflected in recent judgments of this court, and of Master Marlene Ng, the PI Master who has substantial experience in these matters.

28.  In the past, parties often obtained surveyors’ reports on the size and cost of suitable accommodation and reports from architects on the cost of adaptations.  This practice has been frowned upon as being unnecessarily extravagant, and wasteful of costs, given that such information is readily available on property agents’ websites, and given that the information from those websites is reliable, and can be used as true comparables because they are derived from actual transactions in the market place.

29.  I refer to my own decision in Tsang Sang Kwong v Wing Hing Air Condition Engineering Ltd., HCPI 729/2007, 3 December 2010, and I quote from paragraphs 6 to 11 of that judgment:

“6. The second part of the application relates to a further expert report from Mrs Shelley Chow on whether or not it is reasonable for the plaintiff to be provided with damages to cover the rental expenses of a terraced house in Fairview Park and whether it would be of benefit to him to have a terraced house with an open garden.

7. Mrs Shelley Chow in her report has already set out the square footage of suitable alternative accommodation, and she says that the plaintiff would need at least 600 square feet usable area should he and his wife decide to share a bedroom, and that he would need maybe as much as 650 square feet usable area should Mrs Tsang prefer to have her own bedroom.

8. It has been the practice for some time for parties concerned with such claims to obtain evidence of the rental cost of premises. Much of that evidence is available on the internet and posted by reputable estate agents, and although they tend to show the area in gross square feet as opposed to usable area, I think the general consensus seems to be that one has to take off about 20 to 25 per cent off the gross to make the conversion from gross to usable area, and in fact much of that evidence has been submitted to me in the defendant’s skeleton submissions, where the prices of different premises have been set out.

9. The plaintiff could easily obtain similar evidence in respect of the rental of an appropriate unit in Fairview Garden and put that evidence before the trial judge for him to decide whether or not it is fair and reasonable to allow the additional rental difference of a terraced house.

10. This application reminds me of a recent case where the trial judge in England awarded the cost of a swimming pool for the disabled person, and that award was overturned on appeal as being extravagant. It is a matter for the trial judge again to consider in the context of the social and economic conditions and the past history of the plaintiff, and what the doctors recommend for him, and to decide whether or not such an award would be fair and reasonable.

11.  Again, this is not a matter in which the court would be in any way assisted by the personal opinion of the occupational therapist.  Certainly the occupational therapist can give evidence on special adaptations that are needed in suitable alternative accommodation because of the particular needs and because of the particular impairments and disabilities of a particular injured person, but that is not the sort of evidence that is being sought, and for these reasons I also refuse that application.”

30.  I also refer to the decision of Master Ng in Lau Yuet Ming v. Hung Ling Kwok & Anor., HCPI 300/2011, 7 March 2012.  I wholly endorse the observations she has made in paragraph 92, and in paragraphs 122 and 124 thereof:

“92.  As regards any physical barrier at ground floor lobby level, I need go no further than to refer to the common sense observation by Fung J in Chang Sui Man (see paragraph 83 above).  Wheelchair access has been part of building specifications since the early 1980s and most except older buildings have wheelchair access.  As explained in paragraphs 53-58 above and as recognised by Fung J in Chang Sui Man, the court in providing for the cost of alternative accommodation in personal injury cases does not dictate that the plaintiff must actually buy or rent a particular property, but rather it assesses a fair compensation that will enable him to reasonably acquire rented or purchased alternative accommodation as necessitated by his injuries. Since (as Fung J pointed out) wheelchair accessibility or otherwise does not significantly affect value, such fair compensation can be awarded on the basis of value figures for units within suitable districts with suitable floor areas, and the plaintiff can then look for a building with wheelchair access.  Even if identifying a particular building with wheelchair accessibility is significant and/or even determinative, such information can usually be elicited from the Websites that show photographs of buildings and their vicinity.  Still further, such concern can be satisfactorily addressed by making brief inspection visits to the few identified buildings or estates chosen by the party and/or taking a few photographs of the lobby level.

……

122.  First, both Rehab Experts have set out their common opinion on the home modifications (as well as the relevant costs) necessary to meet the plaintiff’s needs, and they concur that such home modifications should be supervised by an occupational therapist for a reasonably modest fee.  There is no disagreement between the Rehab Experts on these matters.

……

124.  Since both Rehab Experts agree on the nature and cost of the home modifications, and further since the court is not looking for a particular property that the plaintiff must actually buy but instead is assessing damages that broadly reflect the cost of providing alternative accommodation with size and layout suitable for the plaintiff, I find that expert evidence from an architect or structural engineer is not relevant, necessary or of probative value.”

31.  At page 50 of the report, Ms Sharon Haasma and Mr Andrew Kwok state that:

“A one-level living space of no smaller than 1296 square feet is recommended for the plaintiff which will accommodate full time carers and allow adequate turning space around all obstacles and furniture.”

32.  And then they provide a list of adaptations to the appropriate accommodation to be obtained, including alterations to toilet and bathroom fittings, alteration to kitchen fittings, building ramps, etc.  These are the common alterations that are made to enable paraplegics and quadriplegics to enjoy a reasonable level of accommodation.

33.  So far as the cost of adaptations is concerned, despite the submissions of Mr Millar to the opposite effect, I fail to understand why it should be difficult to get quotations from contractors on the adaptations which are reasonably necessary and which have already been identified in the occupational therapy and rehabilitation report.            

34.  For these reasons, I also dismiss the application for leave to adduce expert evidence from a chartered surveyor and an architect.

35.  May I hear from the parties on costs?

[Submissions on Costs]

36.  I am going to order that one-third of the costs of this application be costs in the cause and that the plaintiff pay to the defendant two-thirds of the costs of this application in any event, to be taxed if not agreed, with certificate for counsel, and, of course, the certificate for counsel also applies to the one-third of the costs in the event that the cause is with the defendants; and I also direct that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.