What is personal injury? It is a form of civil wrong which has been caused by an individual to another individual because of his failure to take reasonable care. Most personal injury actions are usually settled via an out-of-court settlement but in some cases, proceed to court.
Personal Injury in the legal sense falls within the law of tort. It is a civil wrong where harm has been caused to another individual because the other individual failed to take reasonable care. This area of law overlaps with civil litigation. Losses can be claimed for the wrong doing including losses caused by an injury or other type of harm, this also extends to psychological harm.
When a person suffers personal injury as a result of an accident, he or she may commence legal action against the wrongdoer for compensation including but not limited to damages for pain, suffering and loss of amenities. It must be borne in mind that the prime purpose of any personal injury litigation is to obtain compensation, the door for negotiations for settlement is always open
Losses which can be recovered include a recovery of damages and expected future losses. This may include loss of earnings, medical expenses, pain and suffering, emotional distress and legal costs.
Personal injury law is concerned with liability and whether it can be shown that the individual who caused the harm did so because of his failure to exercise reasonable care. It must also be shown that this act was foreseeable and that his failure to exercise reasonable care resulted in a judgment of liability.
Many of these cases however, never proceed to court and more frequently are dealt with via an out-of-court settlement. This is because litigation is a long and expensive process and should only be used as a last resort. The parties may therefore find it easier to settle using this method as opposed to proceeding to court.
In commencing legal action for compensation, the following is a general guide to procedure and practice of personal injury litigation.
Investigation shall be carried out to ascertain the circumstances of the accident to form an initial opinion of the prospects of the potential defendant(s) being liable to the plaintiff.
For the two types of personal injury cases that happen frequently in Hong Kong, namely traffic accidents and work-related personal injury, the following should be noted:-
For road traffic accidents
In most of the cases, one of the parties will be charged by the police for the traffic offence(s) such as careless driving or dangerous driving. No matter whether he pleads guilty or is convicted after trial, the fact of a criminal conviction is very good evidence for the other party (although not absolutely) and is very useful as a foundation to establish liability for a civil claim.
For work-related accidents
In a work-related accident, the circumstances of the accident are usually more complex and the plaintiff has the burden of proof to establish the fault (i.e. liability) of the defendant(s) for the accident.
It should be noted that there is a statutory no-fault based Employee Compensation Claim under which the employee can claim certain compensation from his employer in respect of accidents occurring during employment.
Except for Employee Compensation Claims in which standard application procedures apply, the first step after attempts to settle the claim have failed will be to issue the summons together with the Statement of Claim. This is the formal pleading setting out the plaintiff's version of what happened, why the defendant(s) is liable, and the extent of the claim. This will be accompanied by a medical report and statement of special damage.
The above documents will then be sent to the defendant(s). The defendant(s) should then serve a defence within 14 days. Each side will then have an outline of the other's case. If the Defence attacks the plaintiff's case by making allegations of, for instance, contributory negligence, or counterclaiming for damages, it may be necessary for the plaintiff to serve a Reply and/or Defence to Counterclaim within 14 days of the service of the Defence.
After the close of pleadings, the issues in dispute will be apparent, but neither side will know how the other party intends to prove the case except in respect of the plaintiff's medical evidence. The documentary evidence has to be revealed as the plaintiff, and also the defendant in most cases, will have to serve a list of documents within the time period as stipulated by the court.
Various interlocutory orders may be obtained by applying to the court such as Further and Better Particulars of a pleading or interim payment to the Plaintiff. The plaintiff and the defendant(s) exchange witness statements and expert evidence, if any, within the time period prescribed by the court.
The final step will be for the plaintiff to obtain a date for trial. Counsel will be briefed and the parties will attend court with their witnesses, for trial and judgement. The above is a brief overview of a personal injuries litigation. Please note however that there is a limitation period.
There is a time limit for a potential plaintiff to commence legal action in a personal injury litigation: