Case Detail

HCPI000529B/1996

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

____________

BETWEEN
	WONG HOI TANG ALEXANDER (Suing by Lau Kwai Kwan, his mother and next friend)	Plaintiff

	AND

	HOSPITAL AUTHORITY	Defendant

____________

Coram: Hon Seagroatt J in Court

Date of Hearing: 19 September 2001

Date of Judgment: 6 December 2001

_______________

J U D G M E N T

_______________

1. On or about the 23 May 2000 I made a direction by consent that one aspect of the Plaintiff's claim for damages be tried as a discrete issue in advance of the claims for other heads of damage. This concerned the future care of the Plaintiff. There were in effect, three possible outcomes. One was the continuation of the status quo at the Tung Wah Hospital. The second was the status quo, supplemented or enhanced by any necessary facilities or provisions. The third (the Plaintiff's prime contention) was that he be transferred to a private hospital (St. Paul's being the selected one) with a regimen of medical and quasi-medical services provided on a private basis and co-ordinated by a consultant in private practice (or to home initially and at a later stage, possibly in five years' time, to St. Paul's.)

2. He has been at Tung Wah Hospital in the care of the Defendant authority since September 1993, over 8 years now. It has been the Defendant's contention that he should remain in its care with the present regimen supplemented, if the Court thought this necessary, in certain respects. The decision to be made by the Court had different implications in respect of the cost to be borne by the Defendant, and therefore the possible damages to be awarded under this head, if damages were to be awarded.

3. If the Plaintiff was to stay at Tung Wah being cared for under the regimen which had existed for a numbers of years, there would be no additional cost to the Defendant, much of that expense being in any event, absorbed within the running costs of the hospital. On the basis of the Court deciding that there should be supplementary services for that existing regimen, then extra cost would be involved, either by imposing an extra cost upon the Hospital for these additional services, or, if they were to be provided on a private basis, by an award of damages to the Plaintiff for the provision of these services for as long as was necessary. Finally, if the regimen of care was to be wholly on a private basis, in a private hospital, it would result in the award of a very substantial amount of damages to meet the cost of that. These alternatives would have been apparent to both parties from the outset.

4. On the 6 December 1999, the solicitors for the Defendant wrote to the Plaintiff's current solicitors referring to the 6th hearing of the Pre-trial Review on the 29 November 1999 when the question of the assessment of damages in two separate stages was raised. They wrote:

"The first stage would be the issue of whether it was in Wong Hoi Tang Alexander's best interests to continue to be cared for at Tung Wah Hospital or whether he should be transferred to a private institution. Depending upon the outcome of that first hearing there would then be a second hearing dealing with the costs involved in such future care, if provided on a private basis."

5. To that the Plaintiff's solicitors replied on the 18 February 2000:

"We basically agree with the approach mentioned in your letter of 6th December 1999 concerning the assessment of damages."

6. This agreement between the parties that the assessment of damages should be done in two stages was echoed by me in my judgment of 9 June 2000 following the Plaintiff's application (or rather that of his lawyers) that I should order a degree of discovery against the Defendant to enable an allegedly comparable costing exercise to be carried out. I said then:

"The position now is that with the agreement of the parties I am to deal with the question of damages in two stages."

7. There is nothing unusual in such an course. Order 33 rule 4(2) provides for one or more issues to be tried before others in an action. The English Court of Appeal has interpreted this provision on a fairly wide but entirely logical basis in Woodford & Ackroyd (A firm) v. Burgess [1999] Lloyds Reports P.N. 231.

8. Although the matter proceeded as a preliminary issue it might just as easily have proceeded as the final issue if the parties had been able to agree the remaining heads of damages which included the damages for pain and suffering and loss of amenity.

9. The essential issue for determination was therefore the Plaintiff's needs and whether the proposed regimen of care in a private hospital with ancillary services provided on a private basis was reasonable. If it was, I had to determine the damages in due course to meet this. If it was not and providing the Defendant's current regimen met the needs then there would be no award of damages under this head or heads.

10. As a discrete issue the Defendant was entitled to take such tactical steps to reach an agreement or compromise with the Plaintiff as it thought fit. It had been apparent to the Plaintiff's advisers for a long time that the Defendant was saying that the reasonable course which met the Plaintiff's needs was for him to stay at Tung Wah in the existing regimen supplemented, if appropriate, by any reasonable requirements which his advisers put forward.

11. On 20 August 1998 the Defendant's solicitors wrote to the Plaintiff's then solicitors an open letter. It appears that a number of "Without Prejudice" letters had been written to these solicitors but no positive response had been forthcoming. This letter then sought to put the Defendant in a position whereby it could properly, openly and sensibly, seek to compromise a substantial aspect of the Plaintiff's claim which had not, at that stage, been advanced with clarity:

"It is not clear from the pleadings what it is your clients seek with regard to long-term care."

followed by:

"It is in relation to the future care and accommodation ..... That matters become contentious."

12. The paragraph of direct relevance is the next one:

".... Our clients will, if your clients so wish, continue to provide long-term treatment and care ... at a Hospital under the management and control of the Hospital Authority. He will be kept in a private room. Presently he is in Tung Wah Hospital ......... If your clients find that Hospital inconvenient or inappropriate for any reason, our clients would be happy for him to be cared for in any other Hospital Authority Hospital that has facilities appropriate for long-term care such as is required [for him]. A senior medical officer would be in charge of his care ....... Advice would be obtained from dieticians, physiotherapists and occupational therapists as to the most appropriate treatment [for him]. If specialist medical treatment was necessary, this would be provided. This long-term treatment and care would obviously be at no cost to your clients.

You have in the past indicated that there are aspects of the care presently being provided by our clients that your clients considered inadequate or inappropriate."

[He was in a shared room and when his parents expressed concern about this he was transferred to a private ward for his (and their) exclusive use.]

13. The following paragraph put the onus fairly upon the Plaintiff's advisers to suggest what extra provisions they deemed appropriate if the present arrangement was not wholly satisfactory:

"The present arrangements for ..... care are in our clients' view appropriate and adequate. It would not at this stage be their intention to make any changes but they would accept however, that your clients' views are obviously matters in respect of which great attention should be paid to. Should your clients wish to take up our clients' offer but have reservations about any aspect of the care regime, we would invite you to inform us in what manner they consider the present arrangement unsatisfactory. This will enable us to go back to our clients and obtain instructions on whether they are prepared to change the existing arrangements to take account of the concerns expressed by your clients."

14. This was an eminently reasonable approach, unequivocally expressed in a carefully crafted letter. It called for careful consideration and a constructive response. It was an approach designed to limit the area of the litigation and achieve a compromise on a fundamental aspect of the claim. Implicitly it was an effort to limit or reduce the costs involved in such an aspect. They were likely to be substantial if that issue were to be fully litigated with a team of consultants and support staff on both sides.

15. The reaction of the Plaintiff's then Solicitors on 22 August 1998 was to say that they wanted the benefit of Counsel's views. That I regard as a reasonable reaction.

16. On 21 September 1998 Deacons wrote again referring to their letter of 20 August and reminding the Plaintiff's solicitors of their willingness to pay various items of special damages, in particular the hospital expenses. The letter was a reasonable effort to identify the items and indicate that they would be reimbursed. There was also encouragement to put the Plaintiff's claim in this respect on a proper basis. A meeting to sort the matter out was invited. In my view, given the need for parties to litigation to adopt a sensible, cooperative and costs-conscious approach, the attitude of the Defendant's solicitors was admirable.

17. A reply of 22 September 1998 welcomed the constructive approach of the Defendant's solicitors with regard to the clarification of the special damages. It did not however deal with the fundamental matter raised, namely the proposals for the Plaintiff's future care and accommodation. On 13 October, Deacons wrote asking that urgent consideration be given to the matter. By the same date Yung & Co. stated that they were going to be replaced by Messrs Wong & Yip (subsequently Cheung & Yip).

18. The new solicitors for the Plaintiff sought to postpone medical examination agreed by their predecessors with Deacons for, as far as I can see, no good reason. This action was already stale and progress needed to be made promptly. On 6 November 1998 I made various orders. They included that the Plaintiff was to file and serve an Amended Schedule of Damages setting out the course proposed for the future care and the particular institution concerned, by 4 December 1998 (wrongly printed in the order as 1999). This was what the Defendant's solicitors had invited in their letter of 20 August 1998. Several other orders were made relating to reports from neurologists and a dietician. I set a provisional date for the hearing of the assessment of damages on 19-21 April 1999.

19. On 3 December 1998 Messrs Wong & Yip wrote say that their Leading Counsel, only recently instructed, was of the view that the Plaintiff's claim had not been adequately formulated. This is what Deacons had been telling the predecessors of Messrs Wong & Yip. There was then a vague assertion as to "seeking evidence on various aspects of the claim including financial evidence which will govern the selection of the appropriate multipliers." No specific attempt was made to address of the letter of 20 August 1998.

20. I was persuaded on 29 January 1999 to vacate the hearing provisionally fixed for April and fixed the adjourned hearing of the Pre-trial Review for 19 April 1999. Had I known then the detail of the correspondence passing between the parties I would probably not have acquiesced in the extended timetable. As it was I had some concern about the way the action was proceeding as I reserved the costs of the hearing. No doubt I also hoped that, with a change of solicitors for the Plaintiff and the assurances of Leading Counsel, the action would proceed sensibly and swiftly over the next 21/2 months. Had I known the contents of the letter of Wong & Yip of 3 December against the contents of that of Deacons of 20 August 1998, I ought to have realised that the former was not addressing the latter's proposal, and that the Plaintiff's advisers were taking a course which, in effect, avoided the issue.

21. I had been presented with a skeleton argument by Leading Counsel for the Plaintiff at the hearing on 29 January, the contents of which persuaded me that it was right to pursue the course proposed by him. What is now apparent to me is that either counsel was entirely unaware of the earlier correspondence initiated by Deacons or that he had ignored it in his consideration. Although it had initially been addressed to the Plaintiff's former solicitors it is inconceivable that the new solicitors would have been unaware of it. They have never suggested that it was not in their possession in any of their correspondence.

22. The steps taken by the Plaintiff's solicitors resulted in the hearing of the assessment of damages being postponed further. In the meantime an interim payment into court of over $2.5m was made, the excess over $2m being past medical expenses incurred by the Plaintiff's parents. That excess was paid out to the parents by way of reimbursement. The Plaintiff's solicitors then applied, ex parte initially, for payment out of part of the remaining money in court, in order to provide for a regimen in a private hospital with all attendant ancillary services. It came initially before a Master who made an order, in part, in accordance with what the Plaintiff's solicitors sought. However I took the view that the Plaintiff's interests (the Court had a duty in this regard because he was under a disability) were at risk and ordered repayment of the money already paid out to the Plaintiff's solicitors. Furthermore the application was to be served upon the Defendant's solicitors in view of the basis of the application. It was to establish a regimen which was, in fact a highly contentious issue between the parties. It had been the subject of the correspondence commencing with Deacons' letter of 20 August 1998 and the Plaintiff's legal advisers had still not addressed the matter which they had been invited to. By implication however, it was now clear that the Plaintiff's advisers were pursuing a claim based on the provision of medical and ancillary services and care in the private sector. Their application should have been made to me in the first instance. Given my concern about this case and the state it had reached, the Plaintiff's solicitors should not have gone before the Master.

23. The Court's concern on behalf of the Plaintiff himself was that the course of action, ostensibly sought on his behalf, carried with it the risk of dissipation of a substantial part of his damages in pursuing that which a court might not say was reasonable. It also involved the possibility of raising false hopes or expectations which would only be aggravated if, after such a regimen had been established, the situation had to be reversed, or, the parents were left with an enormous financial burden which would not have to be met by the Defendant. From the Defendant's point of view there was the understandable risk of prejudice if a court were to be persuaded that once having been transferred to the private sector, it was in the Plaintiff's interest to stay there because the interests of the family were overriding factors. In my view, to have acceded to this application and permitted the establishment of an alternative regimen, when that was a fundamental issue between the parties, would have been irresponsible.

24. At this stage the battle lines seem to have been drawn. Counsel for the Plaintiff has not drawn to my attention any correspondence which displaces this conclusion on this aspect. The Plaintiff's advisers had rejected any opportunity to accept the Defendant's offer to supplement the existing care regimen by any reasonable addition for which the Defendant would bear financial (and supervisory) responsibility.

25. Accordingly as soon as the Appeal procedures had been exhausted following my judgment of 9 June 2000, which had been concerned with one aspect of the Plaintiff's advisers' pursuit of a claim for damages to represent the cost of the alternative regimen in a private hospital, preparations were made for the hearing at which I was to determine what was the reasonable and appropriate regimen. I had already invited the Official Solicitor to become involved because I was extremely concerned at the direction that this litigation was taking precipitated by the application for and the avowed purpose of the payment out of a substantial part of the interim payment to which I have already referred.

26. By the time the hearing came on, two carers working 12 hour shift to ensure round-the-clock supervision of the Plaintiff were already in place. The effect of this meant that the parents were entirely released from any necessary involvement in their son's care. This necessary involvement was to replace any necessary care or nursing service which they wished to perform themselves. They were of course free to participate in his care or provide whatever they wished. It relieved them also of any need, if there had been such, to stay in the hospital ward on a permanent basis.

27. This supplemental care and supervision operated in part from November 2000 possibly at the expense then of the Plaintiff's parents or so it appeared. More importantly the Defendant agreed in principle, to the provision of this supplemental service, as set out in their Answer to the Plaintiff's Revised Statement of Damages of 28 September 1999. At that stage it was agreed as a head of damage. Later came their proposal to provide that service at their own expense. Both parties had relied on the suggestion in the report of Dr Yu Yuk Ling instructed on behalf of the Defendant. Although Mr John Bleach S.C., on behalf of the Defendant, in his written submissions at §5(iv)(b) suggested that the Defendant had offered to provide such supplemental service in page 20 of the Defendant's Answer I do not think I can properly conclude that there was then an explicit or implicit offer to bear the cost of this, although I do accept that the way it was expressed was consistent with the Defendant's approach in its letter of 20 August 1998, over one year earlier.

28. Although I proceeded to the hearing by agreement of the parties, such a course falls in any event within the ambit of order 33 rule 4(2) as set out earlier. As it is a discrete issue, the parties are entitled to use any reasonable means of compromising that issue. Since the parties were far apart - the Plaintiff's advisers had, by all indications given, declined the Defendant's proposal for the future regimen and even a meeting to discuss it - the Defendant was entitled to use such means as existed in order to put itself on a sound footing as far as the risk of costs was concerned. A payment into court was clearly impractical. The only course was an open offer or undertaking. Since the result of my judgment (of 9 August 2001) was that the regimen encapsulated by the Defendant's offer and undertaking was the only reasonable course, the Defendant is entitled to an order for the costs of the hearing. The situation is covered by section 52A of the High Court Ordinance:

"The costs of and incidental to all proceedings.... in the Court ..... shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid."

29. If I were not to allow a Defendant its costs where it had succeeded on the discrete issue by making an offer or undertaking which mirrors the judgment, that would be a patently wrong exercise of the discretion. It would also make a nonsense of any court's proper desire and encouragement to parties to achieve a reasonable compromise.

30. The matters set out are in fact the answer to Mr Sarony's submissions on behalf of the Plaintiff that it is inappropriate to make an order for costs at this stage, and that since a payment into court in respect of this head of damages has not been made there can be no order for costs in favour of the Defendant. That submission was simply insupportable.

31. As Mr Sarony rightly states there will be a further assessment from which a money judgment will result. But the Defendant can protect its position in respect of the remaining heads of claim by a payment into court. Had the Plaintiff succeeded on the initial issue its claim would then have needed quantification, and the Defendant could then also have availed itself of the payment into court provision. That being so why should not the Defendant be able to offer or undertake to provide the very system which is decided to be reasonable and appropriate with the implicit backing of a costs order in its favour on the premise that it was doing all it could do to compromise this aspect of the action and reduce costs? In my view the course adopted by the Defendant was entirely realistic and practical and the success of its argument has ensured that a vast amount of costs, consequent upon the provision contentious expert evidence, has been avoided.

32. If this issue had not been "hived" of from the assessment of damages, a court, in exercising its discretion properly, would still have had to consider whether a Defendant who succeeded in its contention, as this Defendant has done, and had made the offer or undertaking at the outset, should have its costs of the issue as if it had been a separately tried, discrete issue. Not to have done so at the end of the day would have been a failure by omission on the part of the Court. I make it clear that I would, in that overall circumstance, still have made an order in favour of the Defendant for the reasons already given.

33. In all the circumstances, it is only just that the Defendants should have the costs of and occasioned by the hearing which resulted in their offer or undertaking being the course which I regarded as the only reasonable one in the Plaintiff's interests. I have also borne in mind the considerations of the English Court of Appeal's decision in Oksuzoglu v. Kay L. L. R. Med [1998] Pt. 4 p.129. Although in the context of this case, I would be reluctant to adopt Brooke L.J.'s phraseology "who essentially was the winner?" as a question a court should ask itself on the trial of a preliminary issue, his question is nonetheless apposite.

34. The order must be against the Plaintiff even though he is legally aided. Accordingly, applying section 19 of the Legal Aid Ordinance (Cap. 91) I may "make an order against an aided person in the same manner and to the same extent as (I) may make an order for costs ..... against any other person." Although this may appear to be inconsistent with order 62 rule 4(1) in so far as it excludes an assisted person from having such an order for costs made against it, as Mr Bleach rightly points out, this rule was taken directly from the old English rules (order 62 r. 8) and in any event the subsidiary legislation, being rules, is overruled by the primary legislation. These costs are therefore payable under section 16 (1)(b)(i) of the Legal Aid Ordinance by the Director of Legal Aid.

Should there be a 'forthwith order?

35. This having been a discrete issue I anticipate that the costs should be readily quantifiable. It is over three years since the Defendant made its then open offer in respect of the future regimen for this Plaintiff inviting a discussion with a view to a compromise on the aspect which was likely to incur most costs if it were to be unresolved. They had admitted liability in 1996. There had been significant delay on the part of the Plaintiff's former solicitors. There has been much delay since 1998 by the Plaintiff's current advisers. This case ought to have been resolved finally in later 1999 or early 2000 at the latest. It will not now be concluded, subject to any further appeals, until early next year. I see no reason why payment of these costs should be delayed for, potentially, an indefinite period, given this action's peregrinations. The Defendant has also paid a substantial part of the special damages and made, by agreement, an interim payment (into court). I have no hesitation in making the order for costs on a forthwith basis.

Should the basis be other than "party and party"?

36. I formed the clear view that the pursuit of a privately based and funded regimen for this Plaintiff was irrational. It was pursued having, it seems, wholly ignored the approach of the Defendant stemming from its solicitor's letter of 20 August 1998. Its pursuit was based on negligible evidence, some of which, when adduced, contradicted some of the points of criticism made against the hospital. Much of that criticism was itself unsubstantiated and should never have been made. It was also pursued against the views of a experienced reputable consultant neurologist who had been instructed by the Official Solicitor in the Plaintiff's interest. It may even have been inresponsible although in order to make such a finding I would need to examine correspondence and hear further argument, which I shall have to do in due course.

37. There is then, a clear argument for the basis to be indemnity costs or common fund costs.

38. The former basis contains a punitive element and I am extremely reluctant to order that costs should be on that basis when it is the Director of Legal Aid, as the holder of the public purse, who is to meet the bill.

39. The overriding factor, however, is my concern about the level of costs in personal injury cases in Hong Kong. In every case in which I have been able to conduct some form of inquiry, however limited, I have found costs excessive and often duplicated because of delay, for example. There are other reasons. The overwhelming majority of cases concerned are costs for successful Plaintiffs' actions, and I should be wary of adopting that as a criterion when approaching the question of the basis of costs for successful Defendants, whose momentum for the action is essentially controlled by the Plaintiff's desire for progress.

40. In this case, despite the validity of Mr Bleach's argument, I do not think it appropriate to order indemnity costs. That leaves the common fund basis. In normal circumstances, a Plaintiff under a disability, and one who is legally aided, would almost certainly, if successful in the action, obtain an order for costs on a common fund basis. The criteria are well-known. However, the numerous aspects of this action indicate that where this Plaintiff has obtained an order for costs, it is highly unlikely that any such order would be on a common fund basis. I say that with the expressed reservation because I have not heard argument about it, but it must be apparent from the way his action has been conducted and my earlier judgments, that there would be negligible if any merit in support of an order for costs against this Defendant on a common fund basis. I have decided, albeit with some reservation, not to order the common fund basis, but that the order should be on a party and party basis. I remain satisfied that such an order will nonetheless provide a proper, reasonable and fair level of costs for the Hospital Authority and that the Taxing Master will have the wide discretion to ensure that all proper steps taken on the Defendant's behalf to meet this aspect of the claim - the allegations involved a wide-ranging inquiry into almost every aspect of the care afforded by this hospital - will be fully provided for. I have also borne in mind that in rejecting the Plaintiff's appeals as being unarguable, both the Court of Appeal and the Court of Final Appeal made orders for the Defendant to have its costs on a party and party basis.

41. If I were to be persuaded at some future stage that an order for costs in favour of the Plaintiff should be on a common fund basis, I do not doubt that I would be reminded of what I have said earlier, and there would be justification for the Defendant reviving its argument that it should have a higher basis of costs than I have allowed in this decision.

The costs following the letter of 20 August 1998.

42. Having dealt with the costs' implications consequent upon the offer or undertaking made at the outset of the hearing, there remains the question of how I should deal with the costs in relation to the same issue following the letter of 20 August 1998.

43. Following that letter, I think it was reasonable to allow the Plaintiff's new solicitors some time to get to grips with the position at least in respect of that aspect of the claim. However, they never did reply constructively to that letter of invitation. From at least early December 1998 they were bent on building up the case which they advanced unsuccessully before me. They never responded directly to the Defendant's reasonable overtures.

44. It is difficult to equate the Defendant's approach directly to a payment into court or the undertaking made at the hearing although all the signs are that the Defendant would have met the supplemental cost which was included in their undertaking, and was accepted in principle in their Answer to the Plaintiff's Revised Statement of Damages.

45. I have decided that the 1 December 1998 is the latest date by which the Plaintiff's solicitors should have responded properly to the Defendant's open invitation. I make an order that there be no order for costs from 1 December 1998 up to the date of the hearing before me.

The costs orders reserved and others

46. Between January 1999 and November 2000, there was a number of hearings in respect of which I reserved the question of costs because I felt that, at the time of the particular hearing, matters were so unclear that I could not make a fair order.

47. The order in respect of the hearing on the 29 January 1999 was resolved in favour of the Defendant on the 19 April 1999.

48. The next occasion on which the costs were reserved was the 10 March 2000 when the Plaintiff's application for payment out of money in court (part of the interim payment) came before me. This as I have indicated earlier was a wholly misconceived application. All the circumstances now indicated that the proper order should be one in favour of the Defendants. I decided that the Official Solicitor should be invited to come into the picture.

49. On 17 March 2000, it was decided that I should visit both hospitals. This exercise was part and parcel of the necessary understanding of what the Plaintiff's advisers were contending was in the Plaintiff's interest. I also bear in mind that the Plaintiff's solicitors had not responded expressly or in any constructive way to the Defendant's solicitors' invitation in their letter of 20 August 1998. The Defendant should have its costs of that hearing too.

50. On May 23 a further hearing dealt with Mr Sarony's contention that the Hospital Authority should give full discovery to enable a comparative costings exercise to be carried out. I gave my ruling on the 9 June 2000. To the extent that my judgment did not make it clear I do so now by ordering that costs be to the Defendant in any event. I have recorded that on that occasion, I suggested that an inquiry should be made of the Hospital Authority as to the possibility of two nurses being provided for full time care either privately or at the expense of the Defendant. I was obviously not aware of the letter of 20 August 1998. The costs order will be in favour of the Defendant.

51. Finally on the 1 November 2000 the Plaintiff's solicitors renewed their application for a payment out to establish the private regimen. I ordered payment out of a lesser sum to represent damages due to the parents for their extra care over a number of years. That was without prejudice to the Defendant's contentions as to the necessity for and the extent of such parental care. I think the proper order is that there should be no order for costs.

52. There were also two ex parte applications - on the 30 August and 7 October - made to Master Cannon for a payment out of the interim payment into Court. Those applications should not have been made to the Master as I have said earlier. It was inappropriate. In my view the Master was misled in that she was not informed of the full background. Furthermore, they should not have been made ex parte and should in any event have been made to me. I vary the orders to ones of no order for costs in both cases.

53. The Plaintiff's solicitors appear to have failed to draw up a number of orders. Any outstanding omissions must be remedied forthwith.

The costs of the Official Solicitor

54. I need not reiterate at this stage the circumstances under which I invited the Official Solicitor to participate with, in effect, a "watching brief" in respect of the 'Plaintiff's' interests. I had concluded that his or his parents' advisers had lost sight of his interests and that the course being pursued in the litigation had little if any regard to the principles involved and to cost. Subsequent events have supported that conclusion.

55. Certain it is that this is not a case where the Defendant should bear any part of those costs. The Official Solicitor's costs will have to be borne in due course by the Director of Legal Aid and/or the Plaintiff's legal advisers and/or out of any funds recovered on behalf of and for the Plaintiff. That will necessarily be a difficult and possibly extended inquiry.

56. The inquiry will not of course be limited to the matter of liability for the Official Solicitor's costs. I shall have to determine as best I can, who is to bear the ultimate burden of the various costs orders against the Plaintiff, and to what extent, if any, any damages held in court for his benefit may be applied towards such costs. The court has the ultimate responsibility for safeguarding his interests.

	(Conrad Seagroatt)
	Judge of the High Court

Representation:

Mr Neville Sarony S.C., with Mr Raymond Leung, instructed by Messrs Cheung & Yip, Solicitors for the Plaintiff

Mr John Bleach S.C., instructed by Messrs Deacons, for the Defendant

Mrs Annie K. D. Williams, for the Official Solicitor

HCPI000529A/1996

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

____________

BETWEEN	WONG HOI TANG ALEXANDER (a person under disability, suing by LAU KWAI KWAN, his mother and next friend)	Plaintiff

	AND

	HOSPITAL AUTHORITY	Defendant

____________

Coram: Hon Seagroatt J in Court

Dates of Hearing: 23-27 April; 2 and 4 May 2001

Date of Judgment: 9 August 2001

_______________

J U D G M E N T

_______________

1. This is the first stage of the final judgment in this sad case. On 9 June 2000 I gave a ruling in respect of an interlocutory application, appeals from which have brought about a further delay of nine months and considerable cost, all of which has to be borne either by the Plaintiff, his parents, the Legal Aid Fund or by the lawyers acting for the Plaintiff. I will return to this aspect later but I must first review, as shortly as I can, the nature and history of this action, which has some bearing on this stage of my judgment.

2. In July 1993 the Plaintiff, then 32 years of age, was admitted to Queen Mary Hospital in Pokfulam complaining of chest pain. It may simply have been a recurrence of ventricular tachycardia, which had led to earlier observation in April and June of that year, and was probably related to his alcohol intake. At some stage a dose or doses of lignocaine were administered to him. He suffered cerebral anoxia or hypoxia, that is, starvation of the brain of oxygen. It was attributed to excessive doses of the drug mentioned. As a consequence, his condition is that now commonly referred to as persistent vegetative state. His body continues to function although in an apparent comatose state.

3. Although there is some residual brain cell function, the damage to the brain stem is such that there is no useful connection or useful existence of cells higher in the brain. There is no realistic prospect of recovery. He was transferred to the Tung Wah Hospital on 9 September 1993 and has remained there ever since.

4. His mother was already in Hong Kong on a visit at the time that he was admitted to hospital. His parents had emigrated to Canada to enjoy their retirement in 1992. His father returned to Hong Kong to join the mother on 3 September 1993. Since that time they have supplemented their son's nursing care to a significant extent taking over certain nursing functions, and have maintained a permanent vigil at his bedside. Until recently they had established their existence on a 24 hour basis within his private ward, on a modest but clearly permanent basis. The private ward has thus assumed a somewhat crowded domestic status, dominated hour after hour by the Plaintiff himself, insensate in his bed; this then has endured for over 7 years.

The present regimen of nursing and other care

5. He receives all the consultant and nursing care from the staff of the Tung Wah Hospital. In addition such services as that of a dietician, physiotherapist and occupational therapist have been provided although the hospital's physiotherapy service has given way, at the parents request, to private physiotherapy. Occupational therapy does not seem to be a service of much relevance in the Plaintiff's tragic state, now or in the future. Round the clock nursing care has been provided by the hospital since late 2000 or earlier this year.

6. Accordingly the need for the parents to provide the degree of general care which they had provided for so long, has disappeared and it is no longer necessary for them to live in the ward. Naturally they wish to come and go and maintain a committed parental eye on how matters proceed. They are not young of course, and this factor always has limited the extent of the physical nursing care which they have been able to provide. Both are dignified, sincere and devoted. If there have, in the past, been occasions when they and the hospital staff have not seen eye to eye it has been, I suspect, because each has their own priorities and there have, understandably, been times when these have not coincided. Having said that, I have the impression that these exemplary parents do not themselves have strident or fundamental criticisms to make of the past or the present regimen, though some of their apprehensions and criticism have been elevated in the course of argument to a fundamental level.

The Plaintiff's opening application

7. Mr Sarony SC appearing on behalf of the Plaintiff with Mr Raymond Leung, applied for the hearing to be adjourned to enable Dr David Bates (from the United Kingdom) to come to Hong Kong, examine the Plaintiff and provide a report on his up-to-date condition, together with his views on the specialist care required. The fact which struck one immediately was the obvious delay in any such arrangements being made for Dr Bates to carry out his examination and investigation if such were considered to be necessary. The issue had been a live one for at least two years. Dr Bates had first been instructed in or about May 1999 at the latest.

8. Mr Sarony said that he wished to adopt this course as the Defendant objected to Dr Huang the well-known neurologist, being called to give evidence. Dr Huang had obviously been brought into the case at the very last minute. His report had not been disclosed to the Defendant's legal advisers or to the Official Solicitor until the morning of the first day of the hearing. It is hardly surprising therefore that the Defendant should object and although Mrs Williams on behalf of the Official Solicitor took a neutral stance, she too had had no chance of considering it or putting it before Dr Brian Choa, the well-known consultant neurologist instructed by her.

9. Mr John Bleach SC, for the Defendant, fully and properly encapsulated the reasonable reaction to this belated manoeuvre by the Plaintiff's advisers. Dr Bates' reports had been agreed. There is no need for him to examine the Plaintiff as there is total agreement as to his condition. Nor is there any dispute as to the nature of the treatment required. It would be a waste of time and cost to indulge in this exercise. The issue is who should provide the level of care and ancillary facilities required?

10. I had little difficulty in concluding that Mr Bleach's approach was the correct one. For some time now I have been concerned at the way these proceedings have been handled on behalf of the Plaintiff, and, perhaps, on behalf of his parents. It seems that delay and waste of cost have been well demonstrated already and in due course, in a particular context, I shall have to consider these aspects fully. For the time being it is necessary for me to state only that if Dr Bates' views had been considered relevant in relation to the existing regimen of care and current and future reasonable needs, they should have been sought fully over two years ago. The majority of material issues having been agreed in existing expert evidence some time ago, any attempt to try and see if they could be opened up again, on simply a conjectural basis, should not be condoned, and verges on the irresponsible particularly in the light of the past history of this action. I therefore refused Mr Sarony's application.

11. Mr Bleach is content for me to read Dr Huang's report on a 'de bene esse' basis but objects to Dr Huang giving evidence. To some extent Dr Huang is out on a limb because he appears to suggest that the Plaintiff experiences pain in some limited circumstances. I think he has adopted this from an earlier comment by Dr Fung and, as I will make clear in due course, I accept the evidence that although the Plaintiff does make some facial grimaces these are not indicia of his feeling pain. I accept the overwhelming body of evidence that he is totally insentient despite some residual undefined function. I did not permit the Plaintiff's counsel to call Dr Huang and I make it clear that that is no disrespect to Dr Huang. He has been put in a somewhat invidious position and, in the context of this case, that should never have been done. Half a day has been taken up with these applications and I will deal with the cost implication later.

The Plaintiff's counsel's outline of the issues

12. Mr Sarony, reviewed shortly the background of the Plaintiff's parents' relationship with the hospital and its provision of services. The evidence in relation to that needs to be reviewed.

13. The alternatives proposed for the future care of the Plaintiff are either home care for a period estimated to be no more than five years followed by institutional care in a private hospital, or, care in a private hospital for the remainder of his life. The first option is governed by the factors of his parents' age and health, and particularly the health of his mother.

14. Only by one of these options, it is contended, may the optimal outcome be achieved, together with a dignified existence, and humane care to the satisfaction and choice of his family. I would not quarrel with the use of the term humane care, although there are other synonymous terms which do not raise the possible implication that he is not already receiving humane care. However the expression "to the satisfaction and choice of his family" is not the correct criterion, if put in isolation, as it appears to have been. There maybe a conflict between family satisfaction and choice and reasonableness.

15. Again Mr Sarony's approach is flawed when he says that the starting point for the assessment of what is the reasonable and necessary care regimen is that of the normal healthy man entitled to receive the treatment and care which he would or could find for himself and purchase in the private sector. The starting point is what is reasonably necessary for this Plaintiff in this condition to provide the proper standard of care.

16. A further point made by Mr Sarony in his opening was that the nursing staff was likely to be affected by the depressing circumstances of his present environment and thus this will affect the quality of care provided by them. There is no evidence of this. I accept that even the most dedicated of nursing staff may well find it depressing to be involved daily, even hourly, in the management and care of an unresponsive patient for whom there is no reasonable prospect of recovery. That risk is no more likely whether such a patient be in his current environment, at home or in a private hospital. I do not accept that the quality of nursing care will be or may be variable for the reason adumbrated by the Plaintiff's counsel.

17. There is in my view a confusion in these opening contentions as to the relevant criteria. The Plaintiff's parents are entitled to expect that the quality of his existence - a term I find more appropriate to use so as to contrast it with the state in which there is a degree of awareness of condition - will be maintained on a proper basis. The assessment must however be on an objective basis though there may be some subjective considerations.

18. Finally, Mr Sarony referred to documented instances of the Defendant's hospital falling below the requisite standard, indicating that fears for the Plaintiff's care are not without positive indication. These I will examine in the light of the evidence adduced. I have to bear in mind in so doing whether any of the instances referred to are indeed fundamental to the regimen of required care, including whether a private hospital or home care provisions would necessarily be proof against any lapses so found. It would be a fallacious proposition to argue that such home care or private institutional care would by their very nature, be guarantees against any failings, even important ones.

19. In the evaluation to be obtained is the Defendant's contention that they will continue to provide for his reasonable needs in the Tung Wah Hospital by the addition of two China trained nurses/carers to cover the 24 hour day, by providing for or paying for any ancillary services required and of course undertaking not to make any charge for such services. This regimen, Mr Bleach argues for the Defendant, provides for the reasonable needs of the Plaintiff and has, with progressive additions, provided properly for his care over a period now approaching eight years.

20. Finally, in the context of these counter-arguments is Mr Sarony's suggestion that something may happen in the future to render the Defendant incapable for some reason or other, of providing what it has been providing and what it says, through Mr Bleach, that it will continue to do so. I had some difficulty in following the scenario envisaged by Mr Sarony which, to the extent to which it was clarified, did not appear to be logical. Mr Bleach dealt with it fully and in any event, if I were to decide that the proper regimen and environment are the existing ones, a Plaintiff has easy and quick remedy through the courts if there were to be any change of the nature which Mr Sarony must have in mind.

The approach of the United Kingdom courts to the issues

21. I think it helpful to consider a number of decisions to see what guidelines or principles can be derived from them and the extent to which they have relevance in Hong Kong.

22. The basic principle in Common Law claims for damages is that the appropriate sum (encompassing all heads of damage) is that which will restore the Plaintiff, as near as may be, to the position he was in before the tort was inflicted. In relation to victims of a tort who have been injured to the extent that they are in a persistent vegetative state there are obviously severe limitations to the practical application of that principle simply by reason of the fact that such victims are insensate or insentient.

23. I start with one of the decisions of the English Court of Appeal - Rialas v. Mitchell [1984] CA 17 July 1984 - to which I referred in an earlier decision in this case and which featured in Mr Sarony's submissions. It is from the judgment of O'Connor LJ that Mr Sarony appears to take his criterion for the future management of a plaintiff such as Alexander Wong. Mr Sarony's statement was to the effect that the starting point was the normal healthy man in the home environment.

24. I anticipate, though I may be wrong, that he has truncated a sentence from the judgment of O'Connor, LJ in that case. The full sentence reads:

"... The starting point is a healthy uninjured child of 6 living at home with his parents; he then sustains the injury which reduces him to his present state; he is in hospital for a year and then returns home and is cared for by his family for another four and a half years."

That scenario is of course a far cry from the one in which Alexander Wong exists. As if to highlight the position of young Rialas, O'Connor LJ continued:

"It is at that stage that the court is being asked to say that it is unreasonable for this 12 year old to go on living at home; that he must move to an institution because it will cost less money for him to live there than it will for him to go on living at home. In my judgment that is not a true alternative in any sense of the word ..."

The difference between the position of young Rialas and Alexander Wong is so self-evident that I do not need to set it out.

25. Although the facts and therefore the essential consideration in Rialas v. Mitchell are so different from those in the case before me, there is nonetheless some assistance and authority to be derived from the English Court of Appeal's approach to a number of matters.

26. O'Connor LJ accepted two propositions put forward by counsel for Rialas - one was that the Plaintiff was entitled to the cost of what is reasonably necessary to alleviate his injury and diminish his disability; the other was that he was not entitled to the best possible facilities, but only to what is reasonably necessary. Likewise I accept those two propositions though in the case of the second I think there must be a degree of variation. For example, a person who has lost a leg, must, in my view, and I hope in the view of any reasonably minded person, be entitled to the best possible prosthesis, cosmetically and functionally, that is available on the market. In so stating, it may be possible to put an end to some of the unedifying arguments on this topic.

27. The late O'Connor LJ, formerly a practitioner at the Bar with considerable experience of personal injury litigation, warned against arguments advanced with the Plaintiff "injured as he is, in a vacuum". That is something I need to bear in mind in this case given the state of the Plaintiff and the strength of emotion which I detect has permeated through to some of his advisers. There may well be cases in which it would be right to conclude that it is unreasonable for a plaintiff to insist on being cared for at home. The case of Rialas was obviously not one and I would stress the word 'obviously' with all due respect to the counsel involved for the Defendants in that case. The tenor of O'Connor LJ's judgment in my view was that it was obvious though he did not use that word. But that judgment was in 1984 when it was still, just, possible for institutional care to match if not exceed the level of care obtainable in the private sector. There is a strong school of thought that in the case of sentient patients, the home environment and the psychological benefit to be derived from it, has considerable advantages over institutional care, providing that it includes essential day to day care in the home, on a private basis, resorting to hospital care only in emergencies.

28. What else can be derived from the decision in Rialas? Again, in the leading judgment, O'Connor LJ said that in a case where the cost of caring for the Plaintiff at home was substantially greater than it would be in a private institution, the burden of proving that it is reasonable to care for him at home is on the Plaintiff. A fortiori, I would respectfully add, if the Plaintiff is contending for institutional care in a private hospital as opposed to a public or government hospital where he has been now for almost eight years.

29. The approach of Stephenson, LJ echoed that of O'Connor LJ:

"Although the means of the wrongdoer are in my judgment, irrelevant to the assessment of compensation for the injured, that assessment is properly to be moderated by what is reasonable. A judge must resist the temptation to make the wrongdoer pay for the best possible treatment, regardless of whether the injured party will in fact receive such treatment or whether it is reasonable for him to receive less expensive treatment."

30. At a later stage in his judgment, in the context of considering Defendant counsel's argument to the effect that what was reasonable for the young Rialas was the less expensive care and treatment which other parents might have chosen to give him or which his parents, if restricted by their own means without the Defendant or his insurers to look to, might or would have given him, he said that although that might be the right answer in some cases it could not be the first base from which the Court's consideration proceeded. That was, whether the treatment chosen and claimed for is reasonable, not whether other treatment is reasonable. Whether the Plaintiff was able to make the choice - young Rialas and Alexander Wong were for different reasons unable to do so - or whether the parents have to in their stead, the principle is that the choice was to be reasonable. The Defendant is liable for that even if he is able to point to cheaper treatment which is also reasonable.

31. The decision in Rialas is helpful in another respect in O'Connor LJ's judgment where he reviews a number of important decisions in claims for damages for personal injuries. Cunningham v. Harrison [1973] QB 942 was considered to be of very limited value in Rialas' case. The trial judge had held in that case that it was reasonable for the Plaintiff to live at home, where he had been nursed by his wife until she died, three days before trial. Denning MR in his judgment referred to the statutory duty of local authorities to provide for many of the needs of a disabled person including the provision of suitable accommodation, nursing and general assistance. The Plaintiff's local authority expected to be able to offer accommodation suitable to the Plaintiff's needs in about two years time. Denning MR concluded that in the light of this assistance a claim for accommodation and nursing expenses should be kept to a minimum. There were however a number of unsatisfactory conclusions in the judgment as O'Connor LJ points out, and certain alternative approaches had not been canvassed before the trial judge. The crux of the claim in Cunningham v. Harrison was that the Plaintiff's council house was unsuitable and that it was inappropriate for him to be placed in a home for the disabled. He therefore should be provided with a purpose-built bungalow and nursing attention for all his needs.

32. Whatever view one may take of the reasoning behind the approach of the Court of Appeal in that case, and of the suspicion that there may not have been evidence to support some of its calculations, the principle followed was that of reasonableness. Of course the existence of statutory duties on the state and local authority were convenient yardsticks for the test of reasonableness and they do not exist to that extent in Hong Kong so as to determine that test more easily. Furthermore, whereas Lawton, LJ had said in Cunningham's case in describing the claim for domestic and nursing help as unrealistic because "he will probably never be able to get the necessary help", in Hong Kong that does not appear to be a problem. I would add that in the United Kingdom these days, over a quarter of a century since Cunningham was decided, these services have developed considerably and there has been a considerable change in the philosophy and availability of care on a private as opposed to a state basis.

33. Lim v. Camden Health Authority [1980] AC 174 also fell for consideration within the limited context of a defendant being unable to argue that, where an injured Plaintiff incurs expenses which are reasonable, if, he had taken advantage of other facilities available i.e. under the National Health Service Act, 1946, those reasonable expenses might have been avoided.

34. The facts of Dr Lim's case are again far removed from those of Alexander Wong and I shall now proceed to examine those areas in which it is contended on his behalf that he should in fact be removed from the hospital where he is currently being cared for, and that a regimen be established either in his home, followed by a private hospital after five years or so, or, ab initio, in a private hospital.

Physiotherapy services

35. Mr Wong Tsan Hung, a chartered physiotherapist, who had first provided a report in October 1997, gave evidence of his involvement with the Plaintiff. The main points of his evidence concerned the failure, as he saw it, to use a tilt-table at the hospital as part of positive therapy to maintain the Plaintiff's condition, reduce the risk of adverse development and facilitate a degree of mobility in his limbs.

36. Mr Wong conceded that the present good status was to be attributed to the physiotherapy provided at Tung Wah supplemented by the exercises carried out by the parents, and now by the carers. Although he appeared to be critical of the Tung Wah physiotherapy system and asserted that the hospital did not have a tilt-table available to use to the benefit of Alexander, it emerged that he had never discussed the physiotherapy policy or system with any of the appropriate staff at Tung Wah.

37. Reading between the lines of his evidence, I also concluded that he felt that Alexander's parents were limiting the amount of improvement which could be attained by removing splints after a short time because they felt Alexander was experiencing discomfort.

38. There was also some difference of understanding between Mr Wong and Alexander's parents over the system which should be introduced progressively to improve his sitting up in bed. Mr Wong tried to set out some sort of guideline for the parents for follow but again there seemed to be some apprehension or reluctance on the parents' part because they thought that Alexander felt discomfort. In fact Mr Wong ascertained from Alexander's mother that she lowered the bed support (which enabled him to be sat up) after the physiotherapist left. He also recommended a treating physiotherapist to the parents but there seems to have been a breakdown in the understanding or relationship between that treating physiotherapist and Alexander's parents.

39. Mr Wong Tsan Hung did not know Alexander's present state not having seen him for some time (probably not since 2 November 2000) and was unaware of the situation concerning chest and urinary tract infections. He accepted that carers could carry out the passive movements of Alexander's limb, and stretching exercises. The programme he had in mind in November 2000 was one hour daily for the first month; then three times weekly for the following six months; finally once a week for the rest of his life. It is clear that he had given the parents advice as to the nature of the physiotherapy to be carried out. It is equally clear that he was less than satisfied that his advice was being accepted by Alexander's parents. In saying that I am in no way being critical of Alexander's parents. They are wholly entitled to reject or accept his advice and I do not begrudge them the thought or hope that Alexander when registering facial grimaces is indicating to them a degree of consciousness or awareness. Nonetheless I have to consider the picture disclosed in the light of the suggestion that Tung Wah's physiotherapy or occupational therapy services have somehow or on some occasions fallen short of what is reasonable.

40. Miss Christina Yau, a Senior Occupational Therapist employed by Tung Wah Hospital since September 1996, became involved in Alexander's treatment in May 1997. She was concerned about the reaction of Alexander's mother to the splinting treatment in particular. I accept that the hospital's department was experiencing some difficulty in a highly sensitive situation. I accept Miss Yau's evidence, and there was much documentary record to support it, that the department was concerned to assist Alexander's progress as much as it could. She enlisted Dr Leung's assistance to explain to Alexander's mother that splinting needed to remain on for longer and should be applied more frequently. Eventually she felt that no decision by her department would be accepted unless the mother was herself in the hospital. In due course the mother would allow only Mr Kwong Koon, the Registered Physiotherapist at the hospital to apply the splints. I will examine his evidence in due course but it seems to me that the hospital's policy and recognition of Alexander's needs was in conflict with those of his mother. Both I am satisfied had his needs, as they perceived them to be, as the priority and were undoubtedly properly motivated. At some stage I think that the hospital staff became somewhat embarrassed and frustrated by the position. As Mr Sarony concedes, his instructing solicitors informed the Hospital that as from 14 November 2000, the parents would be instructing private physiotherapists. This was no doubt the situation to which Mr Wong Tsan Hung referred but which was no more satisfactory because Alexander's mother had her own idea as to how and for how long certain aspects of treatment were to be carried out. Two sentence of Ms Yau's evidence synthesised the situation - "the mother is devoted to her son using her methods" and "the father said that there was no need for my help for the time being." Nonetheless Ms Yau did in fact meet the physiotherapist and made some adjustments to the splints. It was, she said, her duty to keep an eye on all matters of occupational therapy. She had come into the picture nearly four years after Alexander had been moved to Tung Wah. It must have been difficult for her as a professional given the mother's strong and naturally concerned views. I am satisfied that the hospital has not been deficient in the services it has provided and that it has coped well in difficult circumstances borne out of understandable human vagaries.

41. This view is re-inforced by the evidence of Mr Kwong Koon Kwong, who became responsible for Alexander's physiotherapy from February 1997. He experienced difficulties in applying what he thought was the necessary programme. At the earlier stage, most demands emanated from Alexander's mother and he was informed by her that she had reduced the period he had in mind for Alexander to be propped up in bed, by more than half. Mr Wong Tsan Wong, the private physiotherapist, had questioned whether Tung Wah even possessed a tilt-table. Mr Kwong said that when he started at the hospital it had one or two tilt-tables and two to three special wheelchairs. Since private physiotherapists had taken over Alexander's physiotherapy from the hospital, he had not been asked to provide either tilt-table or standing wheelchair for their use.

42. Mr Kwong was able to speak directly from February 1997 when he became responsible for physiotherapy for Alexander. Initially this was provided two to three times per week increasing from December 1998 to five times per week at the direction of the Department Manager. Mr Kwong is unable to speak of the course of Alexander's physiotherapy before he took over. There was not in existence a specific programme from the previous physiotherapist though the notes I have read from 1993 have entries relating to physiotherapy.

43. There is however no evidence of neglect of him by this department. From Mr Kwong there is evidence that the parents did not follow the programme. He had told them of the consequence of failure to do the passive mobilisation and stretching exercises. He did his best to try and persuade them to let him continue treating him and instructing them in the exercises to be carried out. I also have concluded with the aid of all the evidence that his current condition overall attests to good general nursing and ancillary care and I am unable to find on the evidence, that even if there could have been a greater degree of progress in his physiotherapy, it is attributable to fault on any part. There is certainly no justification for a contention that there is fault on the part of the physiotherapy or occupational therapy departments.

Rehabilitation medicine

44. Dr Leonard SW Li was called by the Defendant as being the consultant having the current overall responsibility for Alexander since May 1994. Alexander has initially come under the care of Dr John PS Li from whom the Plaintiff's solicitors had obtained many reports up to November 1999. I have read all these. Dr John Li was called on behalf of the Plaintiff but only to deal with the cardiac aspect. It was his view that his cardiac status was not such as to militate against a home care regimen.

45. The nature of the care provided by Tung Wah hospital is categorised in Alexander's case as infirmary and longer term care. His proof of evidence, in particular that dated 10 March 2001, was adopted as his evidence in this case. His earlier statement of 19 March 1998 was essentially the hospital's reply to the reports obtained by the Plaintiff's solicitors from Dr Fung Ching Fai. Dr Fung was not called on behalf of the Plaintiff, wisely in my view. I had read Dr Fung's reports some time ago and re-read them. In many respects his views backed objectivity.

46. Dr Leonard Li appeared to be taken to task by counsel on behalf of the Plaintiff because there was no written plan or programme for Alexander. Dr Leonard Li explained that all the nurses and providers of ancillary services would note their own involvement. Once or twice there was a case conference but it is true that there is no record of such disclosed. There was some discussion about a pressure relieving mattress, silicone padding, the benefits of a tilt-table for a patient who was not ambulant, and the nature of the contractures after eight years. Mr Sarony at some stage cross-examined Dr Leonard Li on the nature of clonus and myoclonus and noise-related myoclonus. I found it difficult to see how in the comprehensive picture of the Plaintiff's care programme this could assume a real degree of significance. It was however as the result of Mr Bleach's intervention, that it became apparent that Mr Sarony's questioning on this topic proceeded from an inaccurate basis. The extract from a document in Mr Sarony's possession was in terms different from those put forward in his questioning.

47. Dr Leonard Li's evidence which I accept as reliable, truthful and authoritative, can in any event be tested against that from the neurological consultants to which I now turn.

The neurological evidence

48. Dr Yu Yuk Ling is a consultant neurologist of considerable experience and high reputation. He prepared two reports upon Alexander in November 1998 and November 1999.

49. He had spoken to the parents and to the nursing staff of Tung Wah in order to appreciate the different perspectives. He regarded the fact that there had been six episodes of chest infection (on average less than one per year) as indicating a good track record of nursing and general care. Alexander is neurologically stable. Dr Yu regards his condition as remarkably good, a point put to him by Mr Sarony no doubt as part of the Plaintiff's case. He accepted that there had been considerable input by the parents but that this could be provided for by carers or other staff. Dr Yu's analysis of the standard of care demonstrated so far by the Tung Wah Hospital and required by Alexander was a careful and considered presentation.

50. He assessed the following as the prime requirements of proper care for Alexander:

i) Twice weekly visits by a medical practitioner. These will be more frequent if complications arise.
ii) Nursing care of a standard which conforms to that practised in public or private hospitals in Hong Kong.
iii) Care assistants in two shifts each of 12 hours with training in nursing who would provide 'around-the-clock' care and thereby relieve the parents of their need (as opposed to desire) to be involved in that nursing care. These carers could easily be trained to provide the daily physiotherapy and supplement the physiotherapy department's programme, if necessary.
iv) The services of a dietician, physiotherapist and occupational therapist as required.

51. Dr Yu made it clear that as far as patients in Alexander's condition are concerned, there is no difference in Hong Kong between the standard of care in a public and in a private hospital. He made the effective point that no nursing team "however well-staffed and organised" is in a position to provide instant care for non-urgent conditions. To provide for that situation full-time care assistants would be needed, be the patient in a public or private hospital.

52. Although there is some difference between Dr Yu and Dr JPS Li concerning any cardiac risk I do not think that this is a material difference for me to resolve one way or the other. It does not in my view weigh heavily in the evaluation of the factors which should determine whether it is reasonable for Alexander to be taken care of in either of the two scenarios proposed on his behalf. I ought however to be cautious on this aspect and take the view that if any emergency arose, the prospects of dealing with it promptly as an emergency would be enhanced by his being taken care of in a hospital.

53. In considering the question of home care for Alexander, Dr Yu made a valid point which did not seek to intrude into my area for decision. The serious neurological disability represented by the persistent vegetative state is a very demanding and distressing experience for the family. Although the parents are well aware of this over the years in which they have been involved with his care, I would add that by reason of their own ageing process and personal difficulties which surface, that factor will, as a matter of reasonable human experience, loom larger.

54. Mr Sarony canvassed with Dr Yu a number of features of Alexander's care and treatment over the eight year period. These including an incident of swelling and infection of his penis, the feeding system and pressure sores. None of these matters constituted in my view, an indictment of the care he had been receiving at Tung Wah Hospital. He had not, in fact, suffered any pressure sores in Tung Wah but had developed a severe sacral sore when in the intensive care unit at Queen Mary's Hospital before he was transferred to Tung Wah. I did not consider any of the features explored so exhaustively in this case, constituted any serious shortcoming on the part of Tung Wah Hospital and Dr Yu's overall appraisal and measured and compassionate approach to this tragic situation confirmed my views.

55. When Dr Yu Yuk Ling gave his evidence he had not had the benefit of hearing the evidence of Nurse Lau Ka Ling, the current manager of Alexander's ward, although he may have read her statement. She referred to a Nursing Activities Chart prepared on 20 July 2000 for the Plaintiff largely because Alexander's mother suggested on occasions, that certain matters which should have been done had not in fact been carried out. Some chart had pre-existed this although she was unaware of any written programme for his management. Whatever lack of documentation there may be, or may have been at any stage, I do not regard that as indicating an absence of the proper standard of care or concern for Alexander. The nursing record itself is confirmation of a proper approach and I accept this nurse's evidence as supportive of that. She epitomised, in my judgment, the standards which Dr Yu stated obtained within the public sector.

56. It was as a result of the Court's concern for Alexander's interests that the Official Solicitor was invited to intervene, and that Dr Brian Choa, another distinguished consultant neurologist was invited to evaluate Alexander's current condition and care regimen. Dr Choa pithily summarised his view of the argument as to the benefit of a private hospital over a public one - "It is a mistake to think that private hospital staff could provide better attention and care than public hospital staff. There is no advantage to Alexander himself in a transfer to a private hospital".

57. One aspect upon which I have not previously touched because it was clearly an irrelevance in this unhappy situation was the suggestion, emanating if I recall correctly from Dr Fung Chi Wai, that no provision had been made for speech therapy. Dr Choa described it as a bizarre suggestion and in my view, those are the closing words on the matter.

58. Dr Brian Choa, in the reasonable, practical yet fair manner which I have observed on a number of occasions, summarised the essential matters along identical lines:

No treatment can alleviate Alexander's position; he is oblivious to who is caring for him and what is happening; he is in excellent condition; 24 hours nursing care will be an aid to relieving his parents and there will be no need for them to stay overnight at Tung Wah.

59. Out of deference to Dr Huang Chen Ya, the distinguished consultant neurologist who has also given evidence in this court in other cases, I have read his reports.

60. He came into the picture shortly before the 18 April 2001 when he examined Alexander in his ward at Tung Wah Hospital. The hearing before me commenced on 23 April, five days later. He agrees with the assessment of all the other consultants that Alexander is in a permanent persistent vegetative state. His treatment plan is essentially in accordance with that proposed by his professional colleagues. He disagrees in respect of the frequency of medical attendance but only marginally. He is the only true expert who concludes that Alexander feels pain and expresses consequential distress. Dr David Bates explains the signs which some others have interpreted as indicating a degree of sentience. I accept the overwhelming body of professional opinion which over a substantial period of time has concluded that there is no degree of sentience. I respectfully take a different opinion from that of Dr Huang in relation to the level and quality of physiotherapy care provided. In fairness to Dr Huang, he was not aware of the evidence concerning the intervention of Alexander's mother in the hospital's physiotherapy programme and indeed in the programme instituted by the private therapists brought into replace that of the hospital. He also agrees that even in a private hospital a 24-hour nursing care can only be provided by a team specifically for that purpose. Although Dr Huang refers to his having read a bundle of reports on Alexander he does not identify these. It may well be that he was under some time constraints to do so and until he was examined or cross-examined, it would be impossible to determine the extent of this bundle. It is not necessary for me to go into further detail by reason of my decision at the outset of this hearing but I have concluded from the tenor of all, that Dr Huang was invited to give an opinion at the last minute, and as a "stop-gap" and I am far from satisfied that he has been properly acquainted with the situation and the tortuous history which this claim has had to endure.

The arguments and counter-arguments

61. Mr Bleach's succinct and cogent closing submissions deals with all of Mr Sarony's contentions. I have had little difficulty in accepting Mr Bleach's arguments as disposing of all those advanced by Mr Sarony. It is not therefore necessary for me to deal specifically or in detail with all of those contentions but I will deal with some because many of them proceed from a flawed basis.

62. The test I have already set out. Is the Plaintiff's claim for an alternative environment with care regimen a reasonable one? The burden is upon him or rather upon those who advance such arguments on his behalf. Mr Sarony's references to mitigation are borne out of a misconception. Mitigation is not a relevant aspect.

63. I do not propose to deal with Mr Sarony's arguments in his opening submissions specifically, save to note that he appeared to persist in an approach to the evaluation of the regimen in Tung Wah hospital which had previously been rejected by myself as irrelevant, and by the Court of Appeal (twice) and by the Court of Final Appeal (once) as unarguable.

64. It is not relevant that the Hospital Authority is not or may not be insured. I do not understand Mr Sarony's contention that if I were minded to decide that the only reasonable course is for Alexander to stay at Tung Wah with its current regime, including the 24-hour care cover, that I have no jurisdiction to make such a decision because it is not a 'money' judgment. This is but one aspect of the Plaintiff's claim, albeit an important one, and one potentially involving the largest head of damage. But given the burden upon the Plaintiff to satisfy a court that the proposed regimen of care is a reasonable one, in the context of this case the claim for damages to facilitate or provide for this course fails if it is not reasonable when set against the alternative (or alternatives). It is no different from any other head of claim. There are other heads of damage which will inevitably involve considerations of amount and a judgment in money terms - e.g. pain and suffering and loss of amenity, loss of past and future earnings. The argument advanced is simply not sustainable.

65. One particular area of Mr Sarony's submissions requires specific consideration as far as public interest is concerned and that relates to his assertions of Tung Wah's alleged deficiencies.

a) There is no evidence that Tung Wah is a sub-standard hospital. My own impressions were not in relation to clinical care and do not support such an allegation. They should be noted in the strict context in which they were given. My more recent visit detected an overall improvement in the general impression of brightness and outlook.
b) There is no evidence that the standard of clinical or nursing care at Tung Wah was less than that of other hospitals within or without the Hospital Authority.
c) There is no acceptable evidence of insufficient manpower or that the hospital staff were unwilling to look after the Plaintiff. The fact that the parents understandably became involved in his care to a substantial extent, in effect providing 24-hour supervision and assistance, cannot be equated with the state alleged to exist. On all the evidence I am satisfied that the parents took over such care but I do not accept that had they not done so the hospital's care would have been deficient as alleged. It is impossible to extrapolate from the parents' concern and their own desire to be totally involved with his care on the basis which they perceived to be necessary, any sensible notion that, objectively, the hospital's care regimen was deficient. I reject totally the contentions that there was a lack of input from the physiotherapist, the occupational therapist or the dietician. The report of Mimi Sham, obtained by the Plaintiff's solicitors in April 1999, if carefully read and considered, clearly does not support "lack of input" and identifies the problem of parental intervention. It is an objective assessment which has been overlooked in pursuit of, in my view, an unbalanced and unrestrained partisan view of the hospital's services.

The decision

66. Alexander is tragically existing in a persistent vegetative state, insentient, that is without sensation or awareness. He has been in this condition for eight years. His physical condition is excellent and has been for a long time.

67. He has been receiving nursing and clinical care with the services of a physiotherapist, occupational therapist, and dietician, amongst others. His medical records indicate minimal problems with no complications. The episodes of chest and urinary tract infections are not inconsistent with what I find to be a high level of care.

68. Clearly his parents, particularly his mother, have felt that on occasions, the level or frequency of care in certain areas, has been below their expectations. I do not think that their experiences, even as they view them, indicate shortcomings in the hospitals system. I consider that the points to which they have referred, have been elevated in argument quite without justification, to an unrealistic and unsupported level of criticism.

69. Undoubtedly over the years, until recently, his parents have played a significant part in his routine day to day nursing. I have not formed the view that this was to make up for a shortcoming on the part of hospital staff. I do not in fact think it necessary for that level of care to be provided to meet Alexander's needs. It is extremely difficult to separate what they wish and have wished to provide for him from what is necessary but I am sure that in their own minds it is one and the same thing. However, I cannot and do not categorise their past provision of services as unreasonable given their interest on his behalf.

70. Their concern and wish to be directly involved in his care has demonstrated itself in relation specifically to his dietary requirements physiotherapy and occupational therapy. However I find that the hospital's provision of these services has been and is on an optimal basis.

71. In view of his current state, the nature and quality of the services provided and the assurance that they will continue, I do not consider that either of the two proposals made on his behalf is reasonable. The expense of these alternatives is of course vast. I do not need to identify the individual costings but the total in either case is between $30 million and $40 million. I am compelled to say that it is quite unreasonable. They include a claim of at least $14.86m. for alternative accommodation and private hospital care and $18.5m. for nursing and other care. Not one item would provide a benefit for Alexander which is not already provided for him in his current regimen.

72. If there still lingers with the Plaintiff's lawyers a notion, expressed or unexpressed, that, because the Hospital Authority was the tortfeasor through the negligence of one or more of its employers in the Queen Mary Hospital, it would somehow be anathema to reason for another hospital (or the same hospital for that matter) to be allowed to continue to take care of him, having for a significant period maintained a high level of care, then this Court should do its utmost to lay it to rest. Such a notion would, quite apart from the valid considerations of this case, import a message which would mislead and perhaps create a loss of confidence on the part of the public wholly without justification.

73. The current regimen of care is wholly reasonable and of a high overall standard. It must of course be maintained and the provision by the Hospital Authority of two trained carers to provide around the clock eliminates any argument as to whether there could in theory be a failure in the system. No system, however sophisticated can eliminate human error, but this reduces it to an irreducible minimum.

74. There is no justification for an argument that some future change in the Hospital Authority's structure or ambit of operations might affect its ability to continue the present regimen and meet its undertaking to this Court so to do. If there were to be some future change which affected the Plaintiff's position adversely, then the Court has power to intervene. Of its own motion it would do so in any event because the Plaintiff is under a disability. I will provide for the submission by the Hospital of a six monthly report on Alexander's condition to the Court and for my personal consideration for as long as I have jurisdiction over this case.

75. My judgment on this aspect of the Plaintiff's claim is that the claims for a care regimen on the alternative bases claimed fails and that in accordance with the undertaking given on behalf of the Defendant, the Plaintiff will remain at Tung Wah Hospital and the Defendant will continue to provide, on its existing basis, all reasonable and necessary medical and nursing care, attention and maintenance at no charge to the Plaintiff, or to anyone who has legal responsibility for him, for the rest of his life, including the provision of a private single room, all medicines, equipment, and physiotherapy and occupational therapy services, and the employment at the expense of the Defendant of two China trained dedicated nurses working in shifts on a 24 hour day, solely for the benefit of the Plaintiff.

Conclusion

76. I feel unable to leave this matter without paying proper tribute to the Plaintiff's parents. His mother did not give evidence when in the light of some of the contentions made on his behalf, it was a reasonable expectation that she would. I am reasonably confident in saying that this case has been a considerable strain and burden for her and her husband. Her recent health has not been the best and she is no longer a young woman. She would have had to revisit life in a private ward which had effectively been her home for a number of years, and try and recall incidents and impressions on which I am satisfied that she held honest views. I think the decision that she should not give evidence was a wise one. Her husband did give evidence. He is a dignified and caring man for whom one has nothing but admiration.

77. The circumstances in which he and his wife chose to live in the room with their son were hardly conducive to an objective view of matters. To that must be added the cultural approach which required that the parents take as much care of him as possible. Both he and his wife, he said, believe that if Alexander were to have 24-hour care, he will get better. I am uncertain as to whether I should construe that literally, but it underlined their belief in the benefit for Alexander of 24 hour care which I have accepted as reasonable, if not strictly necessary. Once that 24 hour care was provided by competent nurses, he said that he could and would go back home and not live in the hospital. With 24 hour care in place I ought to add that the presence of himself and his wife for any substantial period of the day would not be reasonable and would, beyond argument, make the room overcrowded. I am sure the Hospital will do its best to make the surroundings as congenial as possible for them.

78. In the course of his evidence he identified a number of matters with which he and his wife had found fault over the years. It is accepted that there were occasions when the hospital staff failed to respond promptly or fully to some of the parents' requests but none of these were in any way prejudicial to his well-being and were more of an indication of any hospital's inability to meet every request of concerned parents. None of the aspects identified constituted what I regard as a fundamental failing in care.

79. I have made it clear for some time now that I have serious reservations as to whether Alexander's interests have been and are being properly represented. I also have concerns for the position of the parents who have been in the hands of lawyers for seven years. There was substantial delay when the conduct of this action was in the hands of the Plaintiff's former solicitors. Since then this litigation has pursued a tortuous and costly path. The reason I invited the Official Solicitor in the person of Mrs Annie Williams was that I thought someone should keep a 'weather-eye' open on Alexander's behalf. The most recent forays into Court hearings have been costly. I have yet to deal with a number of matters relating to costs. I am grateful to Mrs Williams for her care and professional approach. In due course I shall also have to decide on whom should fall the liability to pay the costs of the Official Solicitor. Even more protracted is likely to be an examination of all the circumstances in order to determine from whose pocket or funds will come the money to meet the costs orders all ready in favour of the Defendant, and other costs liabilities.

80. For present purposes I propose to make an order that in relation to the half-day wasted on the 23 April by an unmeritorious application, the Defendant shall have its costs. Before long I shall have to consider the appropriate order for costs in respect of this hearing. The form of the Defendant's undertaking itself, the substance of which is repeated in my decision with only minor linguistic amendments, together with the contents of open correspondence (specifically the letter of 20 August 1998 from the Defendant's solicitor, to the Plaintiff's former solicitors, K C Yung & Co.) sets the stage for a contention that since the Defendant's regimen was entirely reasonable producing optimal benefit and that the contrary case was unreasonable, producing no benefit for Alexander which was not already guaranteed by the status quo, the Defendant should have its costs of this hearing. I do no more at this stage than highlight the contest to come.

	(Conrad Seagroatt)
	Judge of the High Court

Representation:

Mr Neville Sarony, SC, with Mr Raymond Leung, instructed by Messrs Cheung & Yip, for the Plaintiff

Mr John Bleach SC, instructed by Messrs Deacons for the Defendant

Mrs Annie K D Williams of the Official Solicitor

WONG HOI TANG ALEXANDER v. HOSPITAL AUTHORITY

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