In LAI Chi Wai -v- TONG Hung Kwok and another (HCPI 1235/2014,  HKCFI 628, judgement 23rd April 2020) Bharwaney J allowed a claim for a novel piece of equipment in Hong Kong, namely an exoskeleton.
Mr Lai Chi Wai, a “world champion rock climber”, as a result of a road traffic accident was rendered a paraplegic at T11/12, as well as sustaining numerous other injuries. Consequently, for his remaining life, he will have permanent urinary and bowel incontinence, be impotent and (normally be) confined to a wheelchair.
Mr Lai took part in a pilot programme at HKU as to exoskeletons and, as a result of his experience, sought to claim such. Two specialist experts in the case variously said:
“a powered robotic exoskeleton …[comprises] an external motorised orthosis …placed over a person’s paralysed …limbs for the purpose of facilitating standing, walking, climbing stairs, and performing activities of daily life”
“an active mechanical device…essentially anthropormorphic in nature, worn by an operator and fits closely to his body, and works in concert with the operators movements” with an external power source assisting the wearer to perform movements with weak or paralysed limbs to facilitate upper body function or mobility.
One consequence, which the judge clearly thought important, was that the wearer could not only walk “normally” but see people at the normal eye level, rather than at waist level as when confined to a wheelchair.
The judge reviewed the claimed health benefits of using an exoskeleton for a mobility impaired individual.
The judge accepted the plaintiff had shown commitment to using an exoskeleton and, given the opportunity, was likely to be a regular user for at least the next 25 years of his given remaining life expectancy of 35 years.
The defence predictably opposed the claim.
Bharwaney J made the point that providing aids and equipment is to place a plaintiff, as far as possible, in the same position he would have been in had he not been injured. An exoskeleton would provide Mr Lai with a degree of mobility (beyond that afforded by a powered wheelchair). He also found that the technology was well beyond the experimental stage, although continually advancing.
The judge also had to determine whether such equipment was reasonably necessary for the purpose of rehabilitation or to restore function, and whether the cost of the equipment is reasonable, given the current standard of living in HK.
His Lordship remarked that now the cost of electric wheelchairs and prosthetic limbs are regularly awarded.
As to whether effective use would be made of the equipment, the judge so found, not least as an electric wheelchair with stand up features could not restore mobility to the patient unlike the exoskeleton, at least to a limited extent.
There are apparently currently four kinds of exoskeleton currently available for sale in HK, of which Mr Lai had experience of three. Two were given serious consideration having advantages and disadvantages relative to the other and the judge opted for the cheaper of the two, although the cost of such is still HK$993,800. Such is expected to need replacement every five years and four further exoskeletons systems were provided for, albeit in discounted amounts allowing for advanced payments, producing a total (assessed) award for exoskeletons of marginally more than HK$4m.
As against this, the judge reduced by HK$200,000 the award he would otherwise have made for PSLA, given “the provision of an exoskeleton would restore, to some extent, the plaintiff’s mobility”.
So, in so far as any such cases can, a “happy” result for the plaintiff, one hopes.
There are three caveats however.
One is the judge was clearly impressed by the plaintiff, pre accident, being a “world class rock climber” and thus very fit and active. No doubt the defence in future cases will seek to resist claims for exoskeletons on the basis that the plaintiff was an “exceptional” individual and one of only a very few who could benefit. In reality, there is no reason why such should be so limited. Provided a person can demonstrate determination, having importantly been given the opportunity, future awards should be made.
Second is the judge based his award for PSLA on the award in Chan Yuet Lui Rebecca -v- Ritz Carlton, which he updated in Ng Tat Kuen -v- Tam Che Fu (HCPI 896/2013, 3 May 2019) to HK$2.25m. However, in the present case, he opines that the Rebecca Chan -v- Ritz Carlton award is “exceptionally high” when compared to other awards, where the injuries were more serious including quadriplegia, of which he gives brief details.
Accordingly he reduced the award for PSLA to HK$2m and, of course, actually awarded HK$1.8m given the reduction for the award of the exoskeleton.
PSLA stands for Pain, Suffering and Loss of Amenity. In this case Mr Lai, the plaintiff, 29 at the time of his accident and 37 at the time of judgement, is rendered incontinent both of bowel and bladder, as well as impotent, will have considerable life long pain from his other fractures and, notwithstanding the exoskeleton, will never be able to walk unaided or even to stand unaided.
It is suggested that rather than the award for Rebecca Chan, as updated, being “exceptionally high”, the other awards – and indeed that of Rebecca Chan – were far too low. The writer is sure that nobody, including defendants representatives, would think that an award of say HK$3m was sufficient for “PSLA” if it was them personally that was injured in the same way as Mr Lai, or Rebecca Chan, and with the same consequences.
Third, the judge entered judgement for the plaintiff against the defendants in the sum of 75 percent of the damages as assessed, having found Mr Lai to be 25 percent contributorily negligent.
The judge found (or at least accepted the evidence of D1) that the plaintiff was riding his motorscooter in the 2nd lane at about 50kph and cut into the 3rd lane in front of D1s vehicle, which struck the plaintiff’s motorscooter.. In consequence the plaintiff was thrown therefrom and was then hit by D2s vehicle, being thrown into lane 2. [In para 56] the judge finds the plaintiff, on seeing the traffic ahead of him in the 2nd lane was slowing down, crossed into the 3rd lane without keeping a proper lookout for oncoming traffic and without having due regard for oncoming traffic. In consequence he was hit by D1. The judge finds Mr Lai to be negligent, assessing his responsibility to be 25 percent with the 1st defendant being 75 percent responsible.
D1 it should be borne in mind was “over the limit”, was a “most unimpressive witness” , was convicted of four offences as to the state of his vehicle, was driving in excess of 80kph (the speed limit) - as indeed was D2 -, failed to keep a proper lookout and when he became aware the plaintiff’s scooter had crossed into the 3rd lane his reaction was impaired because of the effect of alcohol. Although he braked he did not swerve.
Notwithstanding all this, Mr Lai’s apparent failure to look (and he could not remember what he had or had not done due to the effect, perhaps fortunately, of his sustaining retrograde amnesia as a result of the accident) causes him to only be awarded three quarters of what he would otherwise have received. Thus his award (as discounted) for PSLA is HK$1,440,000. Perhaps more significantly the award for the exoskeletons is reduced from HK$4,008,493 to HK$3,206,794 with the consequence that the fourth replacement exoskeleton is completely wiped out and a further 28 percent (or HK$195,163) of the third replacement (or fourth) exoskeleton is lost. Thus, instead of being provided with five exoskeletons in the next 25 years, the plaintiff will receive three and a contribution to a fourth.
Is this fair?
It is suggested that when a tortfeasor is culpable, has rendered somebody seriously injured, it is wrong for the law to discount the injured person’s “compensation” because of momentary inadvertence by the injured party.
Other than that, congratulations to the judge for allowing the claim and to the plaintiff’s representatives (and the plaintiff) in (successfully) advancing it. Might it simply be the first, with others to follow.
N Millar, Solicitor