.The Official Journal of The Law Society of Hong Kong – (June 2020)
Court No.: HCPI 1235/2014
Coram: Madam Justice Bharwaney J
Date of hearing: 23rd April 2020
Exoskeletons and Consequences
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” and as
“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.
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.
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”.
Final, 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.
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