Lai Chi Wai v Tong Hung Kwok and Tsui Siu Fai [2020] HKCFI 628 (HCPI 1235/2014)
In Lai Chi Wai v Tong Hung Kwok and Tsui Siu Fai [2020] HKCFI 628 (HCPI 1235/2014), the Hong Kong Court unprecedentedly awarded damages for the plaintiff’s claim for the costs of an initial and replacement exoskeletons. An exoskeleton is a powered robotic device which fits closely to the operator’s body, facilitating the operator’s paralysed or weakened limbs in performing activities of daily living.
Background
The plaintiff was a world champion rock climber, who was left paraplegic after a road traffic accident involving the defendants.
On 9 December 2011 at around 10pm, the plaintiff (who was 28 years old at the time) was riding his motorcycle on the Siu Lam section of the Tuen Mun Road. As he switched lanes, he was first hit by the first defendant who was speeding and driving under the influence of alcohol, and he was then hit by the second defendant who was also speeding. As a result of the accident, the plaintiff suffered some permanent and irreversible injuries, including a fracture of the spine, leaving him totally paraplegic with total loss of sensation from the pelvis downwards.
Liability
The court held both defendants liable to the plaintiff for the injury, loss and damage resulting from the accident. However, the court also found that the plaintiff contributorily negligent, on the basis that a quick glance to his right would have enabled him to notice the first defendant approaching at a high speed. Therefore, the division of liability was 75% on part of the defendants and 25% on the part of the plaintiff.
Quantum
The evidence of the orthopaedic experts was that the plaintiff would remain totally paraplegic for the rest of his life.
The significance of this case lies in the plaintiff’s claim for the cost of an exoskeleton, amongst other heads of damages.
The defendants disputed this head of claim on the basis that the technology was still under development and the cost for the device was disproportionate (noting the provision made for a powered wheelchair with stand-up feature).
The plaintiff expressed a wish to be provided with an exoskeleton for over-ground ambulation. He submitted the use of the device would allow him to feel like a normal person, and enable him to stand up and walk again as well as to perform useful tasks himself.
The court disagreed that the technology was still in development and considered it was not an ‘unwarrantable luxury’ in light of technological advancement. The court further stressed the purpose of providing aids and equipment is ‘to place the plaintiff, as nearly as possible, in the same position he would have been if he had not been injured’. The court examined the suitability of the plaintiff as a user of the exoskeleton, taking into account the following factors:-
The court stated that the plaintiff’s ability to make effective use of the equipment was a ‘critical consideration’ and that the plaintiff had demonstrated to the court his determination and ability to make effective and regular use of the exoskeleton.
The court found the cost of an exoskeleton, including its replacements, was reasonable. The claim did not fall within the category of an ‘unwarrantable luxury’.
The court was of the opinion that if the plaintiff was provided with the device, he would use it frequently for at least the next 25 years of his life. It would also provide him with many health benefits, including preventing the development of pressure sores from prolonged sitting and improving blood circulation. Therefore, the plaintiff was awarded the cost of an exoskeleton with four replacements (in the total amount of HKD4,008,493.00), subject to the 25% deduction for the finding of contributory negligence. As the provision of an exoskeleton would restore, to some extent, the plaintiff’s mobility, the award for pain, suffering and loss of amenity was reduced.
Comment
The decision in this case serves to highlight the willingness of the Hong Kong Court to award damages for what it observed as a novel claim in common law jurisdictions.
Of course, the outcome of each case will turn on its own facts. Undoubtedly, in this case, the court was sympathetic to the fact that the plaintiff had been an elite athlete prior to the accident and is no longer able to participate in any sports. Furthermore, the court took note of the plaintiff being committed to his health and fitness after the accident and had no concurrent health issues. These all appear to be indispensable elements in the court’s decision.
While this case demonstrates the acceptance of the Hong Kong Court towards novel medical technology, it remains to be seen whether similar claims will be granted.
Read more items in Hong Kong Medical Law Brief - Summer 2020 edition
