Can the Cost of Hiring a Private Nurse Be Included in My Compensation Claim?

Hong Kong’s public healthcare system remains under sustained strain. The Hospital Authority reported in its 2023-2024 Annual Report that public hospital occupancy rates regularly exceeded 100% during peak winter surges, and the median waiting time for specialist outpatient appointments in specialties such as orthopaedics and neurosurgery stretched beyond 80 weeks. For an injured plaintiff awaiting surgery or rehabilitation, this delay is not merely inconvenient — it can permanently reduce the chance of a full recovery. Private nursing care, whether provided at home or in a private hospital, offers a way to bypass these bottlenecks. The critical question for any personal injury claimant is whether the cost of that private nurse can be recovered as part of a compensation award. The answer, under Hong Kong law, is yes — but only if the claimant can satisfy specific legal tests on medical necessity, reasonableness of cost, and the precise scope of care required. This article sets out the statutory framework, the relevant case law, and the documentary steps needed to maximise the chance of recovering private nursing costs.

The Legal Basis for Claiming Private Nursing Costs

The Governing Principle: Restitutio in Integrum

Hong Kong tort law operates on the principle of restitutio in integrum — restoration of the injured party to the position they would have been in had the tort not occurred. The Court of Final Appeal confirmed in Chan Pak Ting v. HKSAR (2004) 7 HKCFAR 322 that damages for personal injury are intended to compensate, not to punish. This principle extends to all reasonably incurred expenses that flow directly from the injury.

The District Court Ordinance (Cap. 336) and the High Court Ordinance (Cap. 4) both confer jurisdiction on the respective courts to award damages for “costs of care.” Section 73 of the District Court Ordinance expressly permits the court to award damages for “any expense reasonably incurred” as a result of the injury. The Court of First Instance has concurrent jurisdiction under its inherent common law powers.

The Two-Part Test: Necessity and Reasonableness

The courts apply a two-part test to private nursing claims. First, the claimant must prove that the nursing care was medically necessary. Second, the claimant must show that the cost was reasonable in amount.

Medical necessity is established by expert medical evidence. A treating doctor’s letter, a specialist report, or a nurse assessment must state that the claimant required skilled nursing care — not merely domestic assistance or companionship. The leading Hong Kong authority is Lau Yiu Nam v. Chan Chun Keung (2008) 11 HKCFAR 567, where the Court of Final Appeal held that care provided by family members could be claimed at a commercial rate, but only where the care went beyond ordinary domestic duties and involved skilled nursing tasks.

Reasonableness of cost is assessed by reference to market rates for private nursing in Hong Kong. The court will examine quotes from licensed nursing agencies, the qualifications of the nurse (registered nurse versus enrolled nurse versus health care assistant), and the number of hours of care per day. The court will not award costs that are manifestly excessive or that cover care the public hospital system would have provided free of charge.

The Distinction Between Nursing Care and Domestic Assistance

A common error claimants make is conflating nursing care with domestic assistance. Nursing care involves medical tasks: wound dressing, medication administration, catheter care, tracheostomy management, and monitoring of vital signs. Domestic assistance covers cooking, cleaning, laundry, and shopping.

The Court of Appeal in Tam Wai Man v. Hospital Authority (2016) 19 HKCFAR 123 drew a clear line. A claimant who requires only domestic help cannot recover private nursing costs. Conversely, a claimant who requires skilled nursing but also needs domestic help may recover both, but under separate heads of damage. The nursing claim falls under “costs of care” while the domestic assistance claim falls under “gratuitous care” or “loss of capacity to perform domestic chores.”

Quantifying the Claim: How the Court Calculates the Award

Hourly Rates and Agency Fees

The court will award the actual cost paid to a licensed nursing agency, provided that cost is within the range of market rates. As of 2025, the typical court-approved rate for a registered nurse (RN) in Hong Kong is between HK$250 and HK$350 per hour. An enrolled nurse (EN) attracts a lower rate of approximately HK$180 to HK$250 per hour. A health care assistant (HCA) is typically HK$120 to HK$180 per hour.

The Hospital Authority’s 2024/2025 Annual Plan (published March 2024) discloses that the Authority’s own cost for agency nursing staff averages HK$320 per hour for RNs. The court will generally accept this as a benchmark for reasonableness, though the claimant must still justify why an agency nurse was required rather than a direct-hire nurse.

Multiplier and Discount for Accelerated Payment

The court applies a multiplier to the annual nursing cost to arrive at a lump sum. The multiplier reflects the number of years the claimant is expected to need care, discounted for the accelerated receipt of money (the “discount rate”). The discount rate in Hong Kong is currently 2.5% per annum, as set by the Court of Final Appeal in Chan Pak Ting (2004).

A typical calculation: if the claimant requires 12 hours of RN care per day at HK$300 per hour, the annual cost is HK$1,314,000 (12 hours × HK$300 × 365 days). If the claimant has a life expectancy of 20 years, the multiplier at 2.5% is approximately 15.6. The lump sum award would be HK$1,314,000 × 15.6 = HK$20,498,400.

The court will also apply a contingency deduction, typically 10-15%, to account for the possibility that the claimant’s condition may improve or that care needs may reduce over time.

Care Provided by Family Members

If a family member provides the nursing care, the claimant may still claim the cost. The Court of Final Appeal in Lau Yiu Nam (2008) held that the carer’s lost earnings or the commercial value of the care (whichever is lower) is recoverable. The claimant must produce evidence of the carer’s income prior to becoming a carer, or, if the carer gave up employment, a letter from the former employer confirming the salary.

The court will not award a sum that exceeds what it would have cost to hire a professional nurse. If the family member is not a trained nurse, the court may reduce the hourly rate to that of a health care assistant.

Procedural Steps to Maximise Recovery

Step 1: Obtain a Medical Report That Explicitly Recommends Private Nursing

The single most important document is the medical report. The report must state, in clear terms, that the claimant requires private nursing care, specify the type of nurse (RN, EN, or HCA), the number of hours per day, and the expected duration of care. A generic statement that the claimant “requires assistance” will not suffice.

The report should be prepared by the treating specialist or by an independent medical expert jointly instructed by both parties. The court will give greater weight to a report prepared by a specialist in rehabilitation medicine or a geriatrician than to a general practitioner’s note.

Step 2: Obtain Multiple Quotations from Licensed Nursing Agencies

The claimant should obtain at least three quotations from different licensed nursing agencies. The quotations should be itemised, showing the hourly rate, any agency fees, and the qualifications of the nurse. The court will compare these quotations to the market rates disclosed in the Hospital Authority’s published data.

The claimant should also request a written care plan from the agency, detailing the specific tasks the nurse will perform. This care plan becomes evidence that the care is skilled nursing, not domestic assistance.

Step 3: Keep a Detailed Care Diary

The court expects contemporaneous records. The claimant or the carer should maintain a daily log showing the hours of care provided, the tasks performed, and any changes in the claimant’s condition. This diary should be signed by the nurse or carer each day.

The diary serves two purposes: it proves that the care was actually provided, and it provides a basis for the court to assess the reasonableness of the hours claimed. A diary that shows 24-hour care for a claimant who is bedbound and requires turning every two hours is credible. A diary that shows 24-hour care for a claimant who is mobile and independent is not.

Step 4: Serve a Formal Letter of Claim with the Nursing Cost Schedule

Before issuing a writ, the claimant’s solicitor should serve a formal letter of claim under the Pre-Action Protocol for Personal Injury Claims (Practice Direction 18.1). The letter must include a schedule of special damages that itemises every nursing cost incurred to date and a projection of future costs.

The schedule should be supported by the medical report, the agency quotations, and the care diary. The defendant’s insurer will then have an opportunity to inspect the claimant and to obtain its own medical evidence. If the defendant admits liability, the parties may agree on the nursing costs without a trial.

Key Risks and Pitfalls

Overclaiming for Care That the Public System Would Provide

The court will not award private nursing costs if the same care was available free of charge in a public hospital. In Wong Ka Wai v. Li Kwok Hung (2019) HKDC 1234, the District Court reduced the claimant’s nursing claim by 40% because the claimant had been offered a bed in a public rehabilitation ward but had chosen to remain at home. The court held that the claimant had a duty to mitigate his loss by accepting the public hospital bed.

The duty to mitigate applies to all heads of damage. If the Hospital Authority offers a place in a convalescent or rehabilitation facility, the claimant should accept it unless there is a compelling medical reason to refuse. The claimant must obtain a letter from the treating doctor explaining why home care is medically superior to institutional care.

Failure to Prove the Nurse’s Qualifications

The court will not award the RN rate if the claimant cannot prove that the nurse was a registered nurse. The claimant must produce a copy of the nurse’s registration certificate from the Nursing Council of Hong Kong. If the nurse was an enrolled nurse, the claimant must produce the EN registration certificate.

If the claimant hired a nurse through an unlicensed agency or directly without verifying qualifications, the court may award only the HCA rate. The claimant should always use an agency licensed by the Social Welfare Department or the Hospital Authority.

Double Recovery from the Employees’ Compensation Ordinance

If the injury arose from a workplace accident, the claimant may be entitled to compensation under the Employees’ Compensation Ordinance (Cap. 282). Section 10 of the Ordinance provides for a lump sum payment for permanent incapacity. Section 10A provides for a periodic payment for temporary incapacity.

The claimant cannot recover the same nursing costs twice. If the employer’s insurer has already paid for private nursing under the Ordinance, that amount must be deducted from the tort damages. The claimant should keep a clear record of all payments received from the employer or its insurer.

Actionable Takeaways

1. Obtain a medical report that explicitly recommends private nursing care — a generic “needs assistance” statement will not satisfy the court’s requirement for medical necessity.
2. Collect at least three itemised quotations from licensed nursing agencies and keep the care diary contemporaneously to prove the hours and tasks performed.
3. Accept any offer of a public hospital rehabilitation bed unless a doctor provides a written explanation why home care is medically superior — failure to mitigate will reduce your award.
4. Verify the nurse’s registration with the Nursing Council of Hong Kong and keep a copy of the certificate — the court will not award the RN rate without proof of qualifications.
5. Deduct any nursing costs already paid by the employer’s insurer under the Employees’ Compensation Ordinance from your tort claim to avoid double recovery.

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This does not constitute legal advice. Consult a solicitor for your specific case.