What is a personal injury?
A personal injury occurs when a victim in an accident endures bodily injuries. Personal injuries refer not only to physical harm, but also psychiatric injuries. For instance, an individual might suffer from Post-Traumatic Stress Disorder (PTSD) after a grievous experience of the accident.
Personal injury claims differ vastly in nature as no two accidents are ever identical. In the aftermath of an accident, some victims may endure chronic injuries and pain while some are forced to alter their daily routines or even lose their jobs.
When an individual is injured or died in an accident which is caused by the fault or negligence of another individual, the victim can sue the wrongdoer under common law to recover damages. Legal actions for personal injury are compensatory in nature without imposing any criminal liability upon the wrongdoer.
If the injury is caused by accident arising out of and in the course of the employment, the victim can also seek compensation under the Employees’ Compensation Ordinance (Cap. 282 of the Laws of Hong Kong).
Common Law
To claim damages under common law, the plaintiff (i.e. the person injured) has the onus to prove to the Court that, on the balance of probability, the accident was caused by the negligence of the defendant.
The general heads of damages recoverable are pain, suffering and loss of amenities, loss of earnings, loss of earning capacity, medical and other expenses incurred due to the accident. The Court would assess damages for pain, suffering and loss of amenities with regards to the seriousness of the injuries, the pain inflicted and the loss to the victim’s enjoyment of life. Preceding cases of similar facts or injuries as well as inflation over the years would also be taken into account.
An injured person is entitled to compensation for loss of earnings as a result of the accident before and after trial. To evaluate the amount of pre-trial loss of earnings, the Court has to ascertain the earnings of the victim at the time of accident, the earnings that the victim would have earned but for the accident, the length of the sick leave period and the actual earning that the victim could earn after the accident. In addition, an injured person is entitled to recover post-trial loss of earnings if he continues to suffer loss of earnings after trial. A case in point is that the victim has earned less as he cannot resume to his pre-accident occupation.
Last but not least, an injured person can also recover damages for his medical and other expenses, the interest on the above damages and his legal costs.
The Employees’ Compensation Ordinance
The Employees’ Compensation Ordinance (“the ECO”) specifies the fundamental rights and obligations of employers and employees in respect of injuries or death resulted from accidents arising out of and in the course of employment. The ECO is applicable to all full-time or part-time employees who are employed under contracts of employment or apprenticeship.
Under the ECO, an employer owes a duty to take reasonable care for the safety of its employees. If an employee sustains an injury or dies as a result of an accident arising out of and in the course of his employment, his employer is generally liable to pay compensation even if the employee might have committed acts of faults or negligence when the accident occurred.
The ECO prescribes that an injured employee is responsible to give prompt notice of the accident to the employer. Failure do so may imperil and delay the claim of employees’ compensation. Meanwhile, an employer must notify the Commission for Labour of any accident, irrespective of whether the accident gives rise to any liability to pay compensation.
The employees’ compensation recoverable under the ECO generally includes the compensation for permanent total or partial incapacity (i.e. permanent loss of earning capacity caused by the injury), the compensation for temporary incapacity (i.e. periodical payment), and the compensation for medical expenses.
If an employee is entitled to claim under both the common law and the ECO, it is common for the employee to claim for compensation under the ECO first. However, any damages awarded against the employer under a common law action shall be reduced by the amount of compensation received by the employee under the ECO.
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