YAU KWONG WANG, a mentally incapacitated person by his wife and next friend, LEE YOKE FONG v. DR. LEUNG KAM FUNG TIMOTHY AND ANOTHER

HCPI 875/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 875 OF 2015

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REASONS FOR DECISION

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1. On 26 May 2016, I made the following Order:

“UPON READING the affidavit of Tsang Hing See Pansy filed on 15 April 2016, the 1^st affirmation of Yeung Katy Ka Yee filed on 18 April 2016, the affidavit of Chan Wai Chung William filed on 23 May 2016 and the 2^nd affirmation of Yeung Katy Ka Yee filed on 24 May 2016

AND UPON READING the skeleton argument of Mr Michael Ozorio SC and Mr Eric Tsoi, Esq, on behalf of the Plaintiff dated 24 May 2016, the skeleton argument of Messrs Mayer Brown JSM on behalf the 1^st Defendant dated 25 May 2016 and the skeleton argument of Messrs Howse Williams Bowers on behalf of the 2^nd Defendant dated 25 May 2016

AND UPON READING 2 letters from the Solicitors for the Plaintiff, 2 letters from the Solicitors for the 1^st Defendant and 2 letters from the Solicitors for the 2^nd Defendant, all of them dated 26 May 2016

IT IS ORDERED that:

1. The appeal against the decision of Master Leong dated 19^th April, 2016 to only allow examination and joint report by expert neurologists is allowed to the extent that leave is granted to the parties to have the Plaintiff examined by 2 expert urologists (one urologist for the Plaintiff and one for both defendants) to prepare a joint report on the Plaintiff’s current condition, care to-date, future prognosis and current and future needs.

2. The joint instructions to the expert neurologists are to include instructions to them to give their opinions as to whether occupational therapists/rehabilitation experts should be instructed to examine the Plaintiff and provide a joint report, and if so, the area(s) on which the occupational therapists/rehabilitation experts is/are required to comment.

3. (a) The parties to write to the Personal Injuries Judge on or before 16^th June 2016 to inform the Court of the names of the urologist experts that they are instructing, the date of the joint examination and the date when the Joint Expert Report from the urologists is expected to be ready.

(b) The Plaintiff shall file a copy of the Joint Urologists Report within 7 days of receipt.

4. The Appeal hearing fixed for 27^th May 2016 at 11:00 a.m. be vacated.

5. The Check List Review Hearing returnable before Master Leong on 7^th October 2016 at 2:30 p.m. be vacated, and be refixed on 3^rd October 2016 at 10:00 a.m. before Hon Bharwaney J with 1 hour reserved.

6. The costs of the appeal be costs in the cause with certificate for one counsel.

7.  There be liberty to apply.”

2. This is a medical negligence action. The plaintiff, now aged 70, suffered a cardiac arrest after a laparascopic cholecystectomy[1] performed by the 1^st defendant at the 2^nd defendant’s hospital.  After resuscitation and complex brain surgery, he remained comatose and has been diagnosed to be in a persistent vegetative state.  The plaintiff, who sues by next friend, appealed from the decision of Master Leong made on 19 April 2016 to only allow the plaintiff to be examined by the neurologists nominated by the parties and for them to prepare a joint report.  He declined to grant leave for occupational therapists/rehabilitation experts to be engaged, at least not until the joint neurological experts’ report was at hand.  He also declined to grant leave for urologists to be engaged, notwithstanding that the plaintiff, who was doubly incontinent, suffered from episodes of urinary tract infection, secondary to neurogenic bladder dysfunction and the presence of an indwelling catheter.  The learned Master preferred to review the joint neurologists’ report before considering whether or not to grant leave for urologists to be engaged.

3. After perusing the affidavit evidence and the written submissions of the parties, I communicated my preliminary observations  to the parties on 25 May 2016 in these terms:

“My initial impression upon perusing the papers and submissions is that I might be persuaded to allow the appeal to the extent of granting leave for a single joint or 2 joint expert urologist(s) to prepare a joint report on the plaintiff's current condition, future prognosis and current and future needs. However, although I might be persuaded otherwise, my initial thoughts are that the scope of the joint instructions to the occupational therapist(s) to be appointed, if any, ought to be properly guided by the joint neurological report now being obtained.

If this is the order I will eventually make, it seems to be that the proper consequent costs order should be that costs of the appeal be in the cause with certificate for 1 counsel. The costs below were in the cause and would not need to be disturbed.

In any event, regardless of the outcome of the appeal, I will case manage this action from this point onwards.

If the parties are agreeable that the appeal should be disposed of in the manner identified above, please prepare a draft order for my endorsement and vacate Friday's hearing. I will fix the CLR before me on 3 October 2016 at 10 am (1 hour reserved) on the assumption that the neurologists’ joint report will be available by then.

If not, I will hear the parties on Friday at 11 am as scheduled.”

4. The parties wrote to me separately that they agreed with the disposal of the appeal on the basis I had outlined, the only matter of controversy being the date on which the parties ought to inform me of the names of the urologists they were appointing.  I then made the order set out above.

5. I reiterate the my observations in Ng Wing Man, by his wife and next friend, Ho Siu Fun, v. Everbest Port Services Ltd. HCPI 780/2012, 21 March 2013, that I will not lightly interfere with the case management decision of a Master in a case in the Personal Injuries List, that I will only do so for good reason, and that:

“13.  Although expert evidence can only be adduced with the leave of court, and although the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues and that it is adduced in the most efficient and economic way consistent with the objectives of the CJR, it cannot be denied that, in a case such as the present, the court would need the assistance of the opinion of an expert occupational therapist and rehabilitation consultant who can advise on the therapy that the plaintiff needs to increase his strength and dexterity to perform, as much as possible, the activities of daily living; advise on the care regime, if any, needed by the plaintiff; advise on the aids and equipment, and other consumables required by him; and advise on the accommodation needs of the plaintiff including whether his current residential accommodation is suitable for him or not.  I wholeheartedly agree with the lament of Seagroatt J in Wong Hin Pui v Mok Ying Kit and Anor, HCPI 763/1997, 21 December 1999 at §56 that there has been “excessive, expensive and wholly unjustified use of occupational therapists in personal injury cases”.  However, in cases where the plaintiff is paraplegic or tetraplegic or where his mobility is severely compromised, a court cannot properly assess the quantum of damages without the expert assistance of an occupational therapist and rehabilitation consultant.  It cannot be doubted that this is such a case.

14.   The next question that logically arises is whether the most effective and economic way of adducing this evidence requires that it be obtained at an initial stage in the proceedings or whether it should be obtained after the other expert evidence, including the reports of the neurologist and the psychiatrist, is at hand.  In cases such as the present, where the case cannot progress to trial, or to an assessment of damages without the expert evidence of the occupational therapist and rehabilitation consultant, an order deferring the grant of leave to obtain such evidence can only have the effect of prolonging the proceedings and, thereby, adding to its costs.  It takes time for the single joint expert or the nominated joint experts to arrange and conduct an examination or joint examination and to prepare a report following the examination.  In cases such as the present, leave to obtain an expert report from an occupational therapist and rehabilitation consultant should be granted at the outset so as to enable the parties to prepare their case, to advance their claims in this regard, and to defend such claims, expeditiously and without delay.  His neurological and orthopaedic condition is sufficiently documented in the medical records and reports to enable the nominated experts, Mrs Alice Tsang and Mrs Shelley M. Chow, to proceed to examine the plaintiff and report on his needs.  It is for this reason that I allowed the appeal to the limited extent of granting leave to the parties to instruct their respective occupational therapist and rehabilitation consultant to jointly examine the plaintiff and to prepare a joint report on his needs, including, his accommodation needs.  I understand that the examination will take place on 19 April 2013 and that the joint report is expected on 3 July 2013.

15.     I dismiss the appeal against the order adjourning the plaintiff’s summons for leave to obtain expert evidence from a physiotherapist, speech therapist, and a cardiologist, to be dealt with at the adjourned checklist hearing that has been fixed to be heard on 14 May 2013.  Even if the need for expert evidence from these disciplines was reasonably required, a matter on which I express no opinion and which I leave to be determined by the master at the adjourned checklist review hearing, it was not demonstrated to my satisfaction that leave for such evidence ought to be granted now, rather than at a later stage in the proceedings.”

6. My observations that, in cases where the plaintiff is paraplegic or tetraplegic or where his mobility is severely compromised, a court cannot properly assess the quantum of damages without the expert assistance of an occupational therapist or rehabilitation consultant, do not apply to cases involving plaintiffs in minimally conscious or persistent vegetative states.  Whilst a report from an occupational therapist is likely to be needed on the issue of contractures and how best to deal with them,  the scope of the advice to be obtained from the occupational therapist or rehabilitation consultant must be guided by the opinions of the neurologists engaged to report on the case.  By way of example, there is clearly no need to obtain expert opinion on the accommodation needs of the plaintiff if the neurologists are of the view that the plaintiff needs institutional care and should not be released home.

7. On the other hand, unless their expert opinion is not needed, there is no good reason to delay the grant of leave to the parties to engage urologists to report on the plaintiff’s current condition, care to-date, future prognosis and current and future needs.  In the absence of good reason to do so, deferring the grant of leave to obtain such evidence can only have the effect of prolonging the proceedings and, thereby, adding to its costs.