In Hong Kong, accident victims can instruct lawyers to claim compensation from negligent individuals, entities and their third-party liability insurance companies. One significant component of such claims is Pain, Suffering, and Loss of Amenities (PSLA).
Under common law, PSLA compensation aims to compensate victims for the physical and mental pain and suffering, as well as the loss of amenities they have experienced due to the negligence of the defendant. The amount of compensation varies depending on the severity of the injuries and can range from a few thousand dollars to millions of dollars.
Courts in Hong Kong generally consider the following factors when determining the amount of PSLA compensation:
- Age of the claimant
- Physical and mental pain suffered by the claimant due to the injuries
- Severity of the injuries
- Number and type of surgeries and treatments undergone
- Period of hospitalisation
- Period of having to use crutches or a wheelchair
- Disfigurement or facial trauma
- Effect of injuries on social life
- Possibility of future surgeries
There is no formula for calculating PSLA. The assessment of PSLA is inevitably imprecise and intuitive in nature.
Anthony Rogers JA (Justice of Appeal) in the judgment of Chan Yuk v. Dragages et Travaux Publics (HK) Ltd. & Others [2003] 3 HKLRD 1 explained that the Court would first attempt to assess PSLA damages by reference to comparable cases, and then use the 4 PSLA categories set out below as a cross-check.
Regarding the classification of PSLA levels, the landmark case in Hong Kong is Lee Ting-Lam v. Leung Kam-Ming [1980] HKCA 240; CACV 11/1980, decided by the Court of Appeal in the 1980s. In this case, the court divided PSLA compensation into 4 categories based on the severity of the injuries:
Serious Injury
"This is the lowest category. It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain. " -- From the judgment of the Lee Ting-Lam case
Current PSLA damages: Around HK$530,000 or above
Substantial Injury
"This category extends to injuries which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life." -- From the judgment of the Lee Ting-Lam case
Current PSLA damages: Around HK$715,000 or above
Gross Disability
"This comprises injuries which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes. This bracket includes paraplegics who, particularly if young, can expect to be placed at the upper end of the bracket." -- From the judgment of the Lee Ting-Lam case
Current PSLA damages: Around HK$875,000 or above
Disaster
"This is where the victim requires constant care and attention and is incapable of ever leading or appreciating an independent adult life. This bracket includes tetraplegics and those reduced to "living cabbages" or left with the mental age of very young children." -- From the judgment of the Lee Ting-Lam case
Current PSLA damages: Around HK$1,325,000 or above
(As a side note, the injured person in the aforementioned case was represented by Mr. Kemal Bokhary, who later became a Permanent Judge of the Court of Final Appeal. It was referred to as the "golden age" of court advocacy by Chief Justice Mr. Geoffrey Ma, who served as the Chief Justice of the Court of Final Appeal.)
The compensation amounts for each severity level of PSLA are periodically adjusted by the court, taking into account factors such as inflation and the nature of the injuries involved in each case. In 2017, in the case of David John Slater v Commissioner of Police [2017] HKCFI 1211; [2018] 4 HKC 1; HCPI 646/2012 (7 July 2017), Justice Mohan Bharwaney raised the compensation amount for serious injuries to HK$530,000.
The compensation amounts for each severity level of PSLA are periodically adjusted by the court, taking into account factors such as inflation and the nature of the injuries involved in each case. In 2017, in the case of David John Slater v Commissioner of Police [2017] HKCFI 1211; [2018] 4 HKC 1; HCPI 646/2012 (7 July 2017), Justice Mohan Bharwaney raised the compensation amount for serious injuries to HK$530,000.
It is worth noting that although serious injuries belong to the lowest level of the PSLA classification, the threshold is still relatively high. The injuries need to significantly impact the claimant's daily life and enjoyment, but the claimant still retains reasonable functional capacity. For example, it could involve the need for amputation but successful fitting of a suitable prosthetic limb or severe bone fractures causing recurrent pain.
Therefore, in the majority of accident cases, if the claimant does not require amputation or does not have severe bone fractures, the PSLA for pain and suffering may not reach the threshold of "serious injury". In such cases, the injured plaintiff can still receive PSLA compensation, but it will be lower than the threshold for serious injuries. The specific amount would depend on similar cases involving comparable injuries.
CPH Legal's team of lawyers specializes in accident related personal injuries claims. To facilitate better public understanding of how PSLA is calculated by the courts in recent years, we have gathered and classified recent court cases. We have listed them on the following page, which will be periodically updated:
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