Case Facts   Mr and Mrs Cheung crossed the road disobeying traffic lights and were hit by a speeding car, which left the scene regardless. Mrs Cheung suffered serious injuries and her husband died in the accident. Mrs Cheung was a beautician before the accident. After the accident, she became a hemiplegic and could no longer work. Due to her serious condition, she needs special care in her daily life and requires special home and travelling arrangements. Suffering from tremendous physical and emotional pain and under financial difficulties, Mrs Cheung wants to make a claim, but she has many worries and queries.   Q1.      Whom do I claim against?   If it can be proved that the driver was speeding (ie negligent) and that your injuries and your husband’s death were caused by the accident, you can make claims against the car driver for separate compensation for yourself and for your husband.   Q2.      But it was also my fault to have disobeyed traffic lights. Can I still make the claim?   Yes, because the driver was negligent for speeding. You will receive compensation, although the amount will be reduced depending on how serious your fault was as compared to that of the driver.   Q3.      Isn’t the Department of Justice going to charge the driver for violating the Road Traffic Ordinance? Can I still sue the driver for compensation?   Yes. The Department of Justice deals with criminal liability only. For civil liability, you must sue the driver in order to recover compensation from him.   Q4.      But the police cannot find the driver! What can I do?   As long as it can be proved that the accident was caused by a vehicle and that the driver was negligent, a claim can be made against the Motor Insurers’ Bureau of Hong Kong. MIB will assume its role as the ultimate insurer and make compensation together with costs of the litigation in appropriate cases.   Q5.      If eventually the police are able to find the driver, who is a person without means, then what?   If the car in question was covered by third party insurance at the time of the accident, then the compensation will be paid by the insurer even if the driver is unable to pay. If there is no valid third party insurance or if the insurer is wound-up, then the Motor Insurers’ Bureau of Hong Kong will assume liability as explained above.   Q6.      What items of loss can I claim?   You may recover for yourself pecuniary and non-pecuniary losses. Pecuniary losses include: 1.                  loss of income; 2.                  medical expenses; 3.                  the costs necessarily and reasonably incurred as a result of the accident (eg, travelling costs for attending medical appointments, health supplements, etc); 4.                  the costs of special daily care required due to your inability to take care of yourself; and 5.                  the costs of special home and travelling arrangements required in your case.   Non-pecuniary losses include your pain, sufferings and the loss of enjoyment as a result of the accident. As to the death of your husband, you may recover: 1.                  compensation for bereavement; 2.                  maintenance for dependants, if any; 3.                  the wealth that could have been accumulated by your husband had it not been for his pre-matured death.   Q7.      Do I lodge a claim on my own?   Yes, you may. However, as the driver’s insurer (and also the adjuster engaged by the insurer) is most experienced in dealing with this kind of claims and that the claim may involve complicated legal issues, it is advisable for you to seek legal advice to better protect your interests.   Q8.      Some recovery agents approached me and offered to pursue the claim for me on a “no win, no fee” basis, what should I do?   Recovery agents’ activities are illegal and they will take a chunk of your compensation in the end. In fact, if you win the case or if the case is settled outside court, the defendant will have to pay for you legal costs anyway. Lawyers, being governed by professional body (ie The Law Society of Hong Kong) and their code of ethics, will not share any part of your compensation. Moreover, most recovery agents are limited companies, which could worth as little as HK$1 in case it is being sued and goes into liquidation. On the contrary, even if there is any wrongdoing on the part of a lawyer, a negligence liability fund will pay compensation to the victim. In short, you are strongly advised against engaging any recovery agents.   Q9.      What can I do if I cannot afford a lawyer?   If you have financial difficulty, you may: 1.                  apply for legal aid; or 2.                  discuss with the lawyer to agree on a payment method that you can handle (eg, by instalments during the course of litigation; or by one lump sum payment after the disposal of the claim).    Conclusion Thanks for reading the above, in the unfortunate event that any one you know requires legal advice on this topic, please feel free to contact our partners for free initial consultation.   We bring not only our expertise to clients, we bring our heart.

IMPORTANT: Without knowledge of the background/facts of the individual matter, we do not intend for the above summary to deal with every important topic or to cover every aspect of the topics with which it deals.  Such summary is for general information purposes only and is not intended to provide legal advice.

For enquiries: Please contact members of our Personal & Work Injury Claims Practice Group:

Francis Chan Partner, Co-Head of Personal Injury Practice Group +(852) 2521 3969 francis.chan@onc.hk

Ray Lee Partner, Co-Head of Personal Injury Practice Group +(852) 2107 0355 ray.lee@onc.hk

Published by ONC Lawyers © 2010