Introduction

In personal injury cases, as a general principle, the court will award damages to the injured person in order to restore him, as nearly as possible, to the position the injured person would have been if he had not been injured.

On 23 April 2020, the Hong Kong Court of First Instance (“CFI”) handed down a judgment (Lai Chi Wai v Tong Hung Kwok and Another [2020] HKCFI 628) which, for the first time in Hong Kong, ordered the defendant pay for the costs of an exoskeleton as part of the damages to a paraplegic Plaintiff in a personal injury claim.

Background

This is a sad case in which the Plaintiff, a world champion rock climber, was cut down in his prime as a result of injuries suffered in a road traffic accident.

As a result of the accident, the Plaintiff suffered a fracture of spine, became paraplegic and suffered a substantial loss of amenities from being deprived of the ability to walk and to run. The Plaintiff therefore brought an action in negligence against the Defendants and claimed for, inter alia, the costs of an exoskeleton device as part of the damages.

An exoskeleton is a device comprising an external, powered, motorised orthosis that is placed over a person’s paralysed or weakened limbs for the purpose of facilitating standing, walking, climbing stairs, and performing activities of daily life. Although such a claim was the subject of an award of damages in a European jurisdiction, no award for such a device could be found in a common law jurisdiction, including Hong Kong. Therefore, the Court’s decision in relation to the claim for the costs of an exoskeleton device in the present case established the first case precedent in the common law jurisdiction.

Issues at trial

In deciding whether the Plaintiff was entitled to claim the costs of an exoskeleton device as part of the damages, the Court has to assess:

1.        whether or not the provision of an exoskeleton is reasonably necessary for the purpose of rehabilitation or to restore function;

2.        whether or not the cost of the exoskeleton is reasonable having regard to the current standard of living in Hong Kong; and

3.        whether the Plaintiff is able to make effective use of the exoskeleton.

The Plaintiff has the burden of proof. Therefore, in order to succeed in claiming the costs of the exoskeleton as part of the damages, the Plaintiff has to adduce expert evidence and other relevant evidence to prove on a balance of probabilities that the provision of an exoskeleton is reasonably necessary for the purpose of rehabilitation or to restore function, the cost of the exoskeleton is reasonable having regard to the current standard of living in Hong Kong and he is capable of making effective use of the exoskeleton.

Judgment

In the present case, the Defendants objected to the claim for the exoskeleton. The Defendants alleged that the relevant technology is still under development and that the cost of the exoskeleton is too high. The Defendants also argued that the Plaintiff has already been compensated for the cost of a powered wheelchair with stand-up feature, therefore compensation for the cost of exoskeleton should not be awarded.

After considering the evidence presented by the parties, the Court accepted the expert opinion that the exoskeleton can help the Plaintiff to restore some measure of mobility as well as provide the Plaintiff with many health benefits. The Court also accepted that the Plaintiff is a suitable candidate to be provided with an exoskeleton and he will be able to make full and effective use of the exoskeleton.

Regarding the Defendants’ objections, the Court held that although the technology of the exoskeleton device is continually advancing, the Court did not agree that the technology is still under development. The Court noted that the technology behind the exoskeleton has progressed well beyond the experimental stage and was sufficiently developed to enable 4 different devices to be commercially available in Hong Kong.

The Court held that 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. Although a powered wheelchair with stand-up feature can allow the plaintiff to maintain a standing posture, it cannot restore mobility to the Plaintiff.

The Court also noted that in the past claim for cost of electric wheelchairs was denied as electric wheelchairs have been considered as unwarrantable luxuries. Today awards for cost of electric wheelchairs are regularly made and rarely contested. Items such as expensive prosthetic limbs are also regularly awarded.

The Court held that the cost of an exoskeleton and its replacements, whilst high, is not within the category of an unwarrantable luxury and is reasonable having regard to the current standard of living in Hong Kong. The Court also held that the provision of an exoskeleton is reasonably necessary to restore a degree of mobility to the Plaintiff. Therefore, the Court awarded the Plaintiff the cost of the exoskeleton.

As the provision of an exoskeleton would restore the Plaintiff’s mobility to some extent, the Court slightly reduced the award of damages for Pain, Suffering and Loss of Amenities.

Conclusion

As technology is advancing rapidly, new technologies and medical aids and equipment may continue to be introduced in the future to assist the disabled to recover or restore their mobility. The Court’s ruling on the award for the cost of the exoskeleton shows that even if in the past a claim for the cost of certain technology and medical aids and equipment has never been made or even has been denied, the Court holds an open attitude towards such claim and is prepared to assess whether the new technology and medical aids and equipment are reasonably necessary, whether the cost is reasonable, and whether the plaintiff will use them effectively. The Court will assess whether to make the award in each case based on the individual needs of the plaintiff, the development of the technology, the social situation and the standard of living at the time of the trial.