It is often difficult to estimate the exact amount of the compensation that a person may get from a successful personal injury claim as the circumstances of every case are different. It is best to consult a lawyer on how to commence a claim for damages and calculate the amount of the claim.
Common elements considered
Generally, when the compensation claim for personal injury is calculated, some common elements are considered:
- The past and future financial costs incurred from the injury sustained as a result of the accident
- The suffering and the pain that were caused as a result of the accident
- The interest accrued from the time when the legal proceedings began
- The financial loss suffered by the injured party as a result of the accident
- Legal costs
The main goal of awarding compensation to the claimant is to place them in the position that they would be in if the accident had not occurred, as long as monetary compensation would be sufficient in achieving this goal.
Non-fatal claim
For a non-fatal claim, the usual damages that are included in calculating the amount of the claim include:
- Damages for pain, suffering and loss of amenities
- Loss of earnings
- Other special damages or miscellaneous expenses
- Interest on these damages
- The legal costs incurred for the claimant
Fatal claim
For a fatal claim, the usual damages that are included in calculating the amount of the claim include:
- Damages for bereavement ($231,000 as of May 2021)
- Funeral expenses
- Loss of accumulation of wealth
- Loss of dependency by dependants (if any)
- Loss of services
- Other special damages or miscellaneous expenses
- Interest on these damages
- The legal costs incurred for the claimant
Having calculated the amount of your intended claim, if it is $75,000 or below, the personal injury action should be commenced in the Small Claims Tribunal. If the amount is higher than $75,000 but not more than $3 million, then the action should be commenced in the District Court. If the amount is $3 million or above, the case should be commenced in the Court of First Instance of the High Court.
Can I get legal aid for my personal injury claim?
In Hong Kong, the right to legal representation is guaranteed by Article 35 of the Basic Law. If you are unable to afford the legal costs for your personal injury claim, you may be able to obtain legal aid by making an application to the relevant court. The aim of providing legal aid is to ensure that everyone has equal access to justice and that people are not denied access to justice simply due to a lack of money.
As of 2021, the financial eligibility limit is $420,400 and under the supplementary Legal Aid Scheme is $2,102,000.
Legal aid is available to committal proceedings in the Magistrates’ Courts as well as cases in the District Court, the Court of First Instance, the Court of Appeal, the Court of Final Appeal, the Mental Health Review Tribunal and the Coroner’s Court. If you satisfy the criteria regarding financial eligibility (the “means test”) and merits for defending or taking the legal proceedings (the “merits test”), you will obtain legal aid and a lawyer will be assigned to you. For more details on the Legal Aid Schemes in Hong Kong, you may visit https://www.lad.gov.hk/eng/las/las.html and/or https://www.gov.hk/en/residents/government/legal/advice/advice.htm.
Key takeaways
- In calculating the estimated sum of a compensation claim for personal injury, some common elements are considered, e.g. any financial and non-financial losses, any suffering and pain caused as a result of the accident, and legal costs.
- The standardised calculations for fatal claims and non-fatal claims are different.
- The court in which you commence your personal injury action would depend on the estimated amount of your intended claim.
