CPH Legal handles a large number of personal injuries claims. Some cases concern injured victims who are below the age of 18, for example, a child who was crossing a road and was hit by a car, and a child who was scalded by hot soup in a hotpot shop etc.
Similar to other personal injuries claims, when claiming damages (compensation) for an child injured from an accident, the Solicitor involved will help claim for pain, suffering and loss of amenities (PSLA), medical expenses etc. However, it is noteworthy that a claim involving an injured child involves special legal procedures. Our Principal Solicitor, Mr. Eric P H Chan has shared his experience in the Official Journal of The Law Society of Hong Kong, Hong Kong Lawyer. Below is the extract:
"Personal injuries claims are 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.
Preparing a Personal Injuries claim for an Injured Child - Do's and Dont's
If you or your family member/friend have been injured in an accident, and the accident was caused by the negligence of another party, you can consult us for free via our WhatsApp hotline 6103 0006 or email us to set up a free telephone consultation.