Personal injuries claim is a common tort claim in Hong Kong. Unfortunately, every now and then, children are also the victims in accidents and suffer bodily injuries as a result of negligence by a tortfeasor. When representing children, lawyers need to take into account a range of factors specifically relevant to children as well as the procedures involved.
Preparation of a Claim for Minors
To start with, the proper term to describe this class of claimants is “minors”. Under section 2 of Age of Majority (Related Provisions) Ordinance (Cap 410), a minor is a person aged under 18. A minor cannot bring an action by himself or herself because he or she lacks the necessary capacity, so the claim must be brought by his or her “next friend”. Generally speaking, the next friend must have some connection with the minor, and is often one of the parents. The next friend must not have any interest adverse to the minor (O. 80 r. 3(8)(c)(iii) of RHC).
To act as a next friend, he or she must give a written consent to such effect (O. 80 r. 3(8)(a)), and the written consent must be filed in the Registry (O. 80 r. 3(6)). The next friend then must engage a solicitor, because it is mandated that he or she must act by a solicitor (O. 80 r. 2(3)). Though solicitors take instructions from the next friend, it does not mean that the minor who is the immediate victim in the accident has no role to play at all. Solicitors could meet with the minor in the presence of the next friend so that they can make detailed inquiries with the minor directly. In particular, in formulating a claim for pain, suffering and loss of amenities (PSLA), solicitors may obtain a clearer account from the minor, and, where appropriate, recommendations to seek further medical assistance from specialists could be made to the next friend.
In bringing a claim on behalf of a minor, solicitors should also consider and advise the next friend on matters such as the strength of the evidence, for instance where the minor is the sole witness, the possibility that the minor may need to testify in Court, as well as the stress and inconvenience arising from being engaged in legal proceedings.
Settling the Claim for an Injured Child
Where there is a settlement offer from the defendant, and the next friend is willing to accept such an offer, the settlement must be approved by the Court in order to be valid (O. 80 r. 10), and this is so even if the settlement is reached before proceedings are begun.
In preparing an application to the Court for the approval of a settlement, solicitors are required to take out a summons and prepare a Memorandum which contains all relevant details of the case. The Memorandum will include the details related to liability and damage, and oftentimes they are discussed and explained in great length. Birth certificates and any fresh medical reports must also be exhibited to the Memorandum. Generally speaking, counsel’s advice is required and is also provided to the Court along with the Memorandum. The objective of these procedures is to assist the Court to ascertain whether the proposed settlement sum is reasonable and one that is in the minor’s interest.
It is also important to note (and specific instructions need be given to the filing clerk) that the Memorandum must be lodged with the clerk to the Judge or Master directly, not filed in the Court’s Registry. The Memorandum must also not be served on the defendant, as it contains confidential legal advice and often sensitive information in relation to the minor.
After the hearing for the approval of the settlement, the Court will usually order the money to be paid into the Court and to be invested (O. 80 r. 12(2) and (4)), until the minor reaches the age of 18. In the meantime, the next friend can claim reimbursements for the medical expenses incurred or to be incurred for the minor (O. 80 r. 12(3)). The Court will often require an undertaking by the handling solicitors to prepare an informal letter to the next friend to explain the relevant procedures to the next friend on the procedures of applying for payments out of Court.
It is important for solicitors to bear in mind that they owe a duty to the minor in acting in his or her best interest, notwithstanding the instructions given by the next friend, and the legal procedures currently in place are to ensure the protection of the minor’s interests.