XCHRX WONG HOI TANG ALEXANDER v. HOSPITAL AUTHORITY

HCPI 529/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 529 OF 1996

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R U L I N G

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1. This is one of those cases of a catastrophe to a young person, which all too often features in these Courts as a result of extreme negligence on the part of another human being. In this case the Plaintiff, a man now 38 years of age, was admitted to the Queen Mary Hospital at Pokfulam complaining of chest pain on 17 July 1993. The Hospital's staff negligently administered an excessive dose or doses of lignocaine as a consequence of which he suffered cerebral anoxia and has been in that state which has more dramatically been described as 'living death' but to which the medical world has now applied the description of persistent vegetative state. From this condition there is no recovery because of the damage to the brain stem but the body continues to function although in a comatose state. He was transferred from the Queen Mary Hospital to the Tung Wah Hospital nearly two months later on 9 September 1993. He has remained there ever since.

2. At the time of this tragedy his parents were domiciled in Canada, his father, now 70 years of age, having retired in 1992 from civilian service with the then British Garrison. The Plaintiff is unmarried and had only an older brother living in Hong Kong. His mother however happened to be visiting Hong Kong and stayed on in the forlorn hope that her son might improve and in order to assist his care and watch over him. When the position appeared not to be improving his father returned from Canada on 3 September 1993. Since that time they have both dedicated themselves utterly to his physical care and to maintaining a vigil at his bedside. They are with him for 24 hours of the day. They have in fact set up a modest living environment in his private ward at Tung Wah with all the necessary appurtenances.

3. They were instrumental in getting him into a private ward. At the outset he shared a ward which had very limited facilities. There was for example no air-conditioning or fixed emergency oxygen supply. By 1996 all the necessary facilities had been installed in his ward. I have visited his ward, and him, and seen his parents. Words are not adequate to describe the utter dedication, and yet seeming hopelessness of their position. They are two ageing decent people who have sacrificed their reasonably comfortable retirement for the small narrow world of a hospital ward to ensure that their son has a dignified existence around the clock. They are supplementing and compensating for the deficiencies of the Hospital care regimen. They have been doing it for over seven years. All parties and all medical opinions are agreed that there must be in place for the Plaintiff's benefit a system of supplementary nursing care and supervision to relieve the parents of all that they have been doing so assiduously. The burden is too great and has been inflicted upon these exceptional people for far too long. They have no quality of life. It is a sad commentary upon the system of hospital care in Hong Kong that so much reliance is placed upon the family members to supplement the necessary care. This is not the first instance I have seen.

4. The Defendants admitted liability in 1996 but this action has taken a tortuous and dilatory path since then. I regret to have to say that this is yet another case of delay in progress attributable to in this instance the Plaintiff's former lawyers. It is small wonder that a high degree of emotion and concern have crept into this case and that some less than rational views have precipitated hasty actions. It was in order to redress the balance that I invited the Official Solicitor in the form of Mrs Annie Williams to intervene on behalf of the Plaintiff. His former solicitors seem to have lost sight of priorities and the need for great care to be exercised. The extraordinary period of time over which the parents had been allowed to continue to bear their desperate personal burden is evidence of this.

5. The position now is that with the agreement of the parties I am to deal with the question of damages in two stages. I am satisfied that this will prevent a headlong unrestrained indulgence in expensive expert evidence which may in any event be premature. The first stage will be my consideration of arguments in relation to whether the Plaintiff is to stay at Tung Wah or whether he should be transferred to a private hospital with a specially devised regimen of care and supervision. This will take place starting on the 10 July.

6. On 23 May Mr Neville Sarony, S.C., on behalf of the Plaintiff, advanced the argument that for me to give proper consideration to that fundamental matter on which I would have to make a crucial decision, I would have to have before me from the Defendant Hospital Authority, a detailed costing of all aspects of the care regimen currently provided by the Defendant. Of necessity this would involve a detailed timing and costing of all the neurological, physiotherapy and nursing services etc. as well as the cost, notional or real, of drugs, equipment, materials, utilities and the ward itself.

7. It is self-evident that this would be an enormous undertaking itself consuming a vast amount of time and effort. At the end of the day it may well be an artificial exercise. So many costs, even in a hospital, are standing costs. One is well aware of the artificiality of costing exercises by government departments in many countries.

8. The purpose of the exercise is to provide a comparison with the costing already done of the regimen which can be established at St Paul's private hospital. Mr Sarony argues that what a court has to look at is what the patient/Plaintiff needs and if the Defendant's own costings turn out to be in excess of the cost of the regimen calculated on the basis of care at St Paul's, then the rationale of the argument is quite clear - the Plaintiff is entitled to be transferred to St Paul's with the regimen devised, all other things being equal.

9. To my mind there is a flaw in this argument and approach. The criterion is not a simplistic one of cost but an assessment of what is in the Plaintiff's interest. What is his need and entitlement? The position is in a way chillingly straightforward in this case. Given his insensate state does the present environment and regimen fall short of the criterion? If it does not why should it be fair, just and in the Plaintiff's interest to move him to an environment of which he will be just as unaware and a regimen which involves considerable expense and which on any view must involve more cost than is apparent from the fact that the Defendant can continue to provide him with proper care within its existing organisation and financial administration. It is not in my judgment a comparable costing exercise. Mr Sarony confirms that there is no case here in Hong Kong or elsewhere in which this matter has been considered. Although it would have been helpful to consider the approach adopted by some other courts I am in fact not surprised that there is no such case. It seems to me that proceeding from a position, if it be such, that a particular institution is willing to continue to provide a care regimen for this Plaintiff which meets his needs, the costs to that institution is irrelevant, and the only issue is whether that institution does in fact to meet his reasonable needs. Accordingly I decline to require the Hospital Authority to take part in a comparative costing exercise.

10. Mrs Williams kindly reminded me of the English Court of Appeal decision in Rialas v. Mitchell reported in the Solicitors Journal vol. 128 (1984) at p.704. It is also in Kemp & Kemp vol.2 at A2-010. It concerned a 6 year old boy (at the time of the accident) who suffered spastic quadriplegia. He had a degree of insight into his condition. I do not need to consider the unhappy aspects of his appalling state resulting from the accident. In the Court of Appeal the Defendant argued principally that there were two institutions in which the Plaintiff could be looked after at a cost less than the trial Judge's award of damages for care at home. Therefore it was unreasonable to compensate the Plaintiff to enable him to be cared for at home. The Court of Appeal rightly rejected the extension of the argument that as a test for the reasonableness of any proposed provision for care at home, there should be a requirement that the cost ought not to exceed what a person of average wealth would provide for himself or his child. There was however an acceptance of the principle that the Plaintiff was entitled to what was reasonable necessary to alleviate his injury and diminish his disability, though not to the best possible facilities. My earlier terminology is in accord with this principle.

11. The decision in Rialas (regrettably it is not reported in any of the standard Law Reports) is interesting and persuasive in a number of respects. The boy concerned had been living at home for four and a half years after spending one year in hospital following the accident. The learned trial judge had found that that it was reasonable for him to be looked after at home. The Court of Appeal was, rightly in my view, not prepared to say that it was unreasonable for the Plaintiff to go on living at home and that he should live in an institution because it would cost less. There might be cases where it would be right to conclude that it was unreasonable for a Plaintiff to insist on being cared for at home. Where the cost of care at home was substantially greater than the cost of caring for him in an institution, the burden of proving that it was reasonable for him to be cared for at home was on the Plaintiff. I would interpose that in Hong Kong I regard the burden as a low one given the circumstances peculiar to Hong Kong viz. the overwhelming desire of family units to provide for their disabled members, and the enormous burden they assume when they visit such patients in an institution. That is of course not to say that there are not certain circumstances where it is in the interests of both the Plaintiff and his family that he should be in an institution even if the family express themselves willing and able to look after him or her at home. The circumstances are infinite and variable.

12. I have yet of course to resolve the question of where the Plaintiff should be. Earlier I referred to having visited him and his parents in his private ward at Tung Wah. The same day I visited St Paul's Hospital and a ward similar to that considered in the context of the proposed alternative regimen. There is no comparison between the two medical institutions. The part of the Tung Wah Hospital I visited is old, unimpressive in its general facilities, in urgent need of re-decoration and provision of adequate lift facilities. The outlook from the Plaintiff's ward is far from stimulating. There is an air of "making do". The toilet and washing facilities are truly limited and urgently need modernising.

13. It has a depressing atmosphere hardly conducive to a desire to get better. A person totally aware of the world around him would regard it, as the English regarded many a Victorian Hospital, as depressing.

14. St Paul's by contrast is light, clean, with an air of efficiency and well-being. A sick person was likely to be imbued with a sense of confidence and hope. The wards are bright, well-equipped, spacious and with a stimulating outlook. As this comparison indicates the two institutions are, as it were, "chalk and cheese".

15. I was not able to, nor was I qualified to make any judgment in respect of their respective medical, nursing, or surgical standards. I knew only that if I had a son who was badly crippled and aware of his condition and therefore in a position to benefit from the advantages held by St Paul's over Tung Wah, I would have no doubt as to which institution would provide most benefit to him.

16. To the extent that these observations assist the parties in this unhappy situation, I have set them out with a view to enlightening the advocates as to my impressions.