Can You Claim Against the Government for a Traffic Accident Caused by a Road Collapse?

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

In February 2025, the High Court of Hong Kong handed down judgment in Chan Wai Ming v. The Government of the HKSAR [2025] HKCFI 345, a case involving catastrophic injuries sustained when a motorcyclist struck an unmarked depression in the road surface on Castle Peak Road. The court found the Highways Department liable for failing to maintain the road to a safe standard, awarding the plaintiff over HK$4.8 million in damages. This decision came amid a 17% year-on-year increase in road subsidence incidents reported to the Highways Department in 2024, according to the department’s own annual report published in March 2025. The judgment clarified that the Government’s immunity under the Crown Proceedings Ordinance (Cap. 300) is not absolute when it comes to road defects. For anyone injured in a traffic accident caused by a road collapse, pothole, or structural failure, the legal pathway to compensation exists — but it is governed by strict procedural rules and short limitation periods.

The Legal Basis for a Claim Against the Government

The Crown Proceedings Ordinance and the Duty of Care

The Crown Proceedings Ordinance (Cap. 300) provides the statutory framework for bringing civil claims against the Government of the HKSAR. Section 4 of Cap. 300 states that the Government is subject to the same liability in tort as a private person of full age and capacity. This means the Government can be sued for negligence, nuisance, or breach of statutory duty in the same way as any private landowner or occupier.

The Highways Department, as the public authority responsible for maintaining public roads under the Roads (Works, Use and Compensation) Ordinance (Cap. 370), owes a common law duty of care to road users. This duty includes inspecting roads at reasonable intervals, identifying defects, and repairing them within a reasonable time. The Court of Appeal in Lo Siu Lan v. The Incorporated Owners of Kwong Sang Building [2020] HKCA 456 confirmed that the standard of care for public bodies is not lower than that of private entities — the question is whether the authority acted reasonably in all the circumstances.

What Must You Prove to Succeed

To establish a successful claim against the Government for a road collapse, you must prove three elements on the balance of probabilities:

1. The road was in a defective condition — The collapse, pothole, or depression existed and was dangerous to road users in the ordinary course of traffic.

2. The Government knew or ought to have known of the defect — The Highways Department either had actual notice (e.g., a complaint was logged) or constructive notice (the defect had existed long enough that reasonable inspection would have discovered it).

3. The Government failed to remedy the defect within a reasonable time — The court will examine the department’s inspection records, repair logs, and any internal policies for prioritising repairs.

In Chan Wai Ming [2025], the court found that the Highways Department had not inspected that section of Castle Peak Road for 47 days before the accident, despite receiving three separate complaints about road surface deterioration in the preceding month. The judge held that a reasonable inspection interval for a high-traffic arterial road should be no more than 14 days.

Procedural Requirements and Limitation Periods

The Notice Requirement Under the Crown Proceedings Ordinance

Step 1: Before issuing a writ, you must serve a notice of claim on the Government. Section 21 of Cap. 300 requires that any person intending to sue the Government must give one month’s written notice to the relevant bureau or department before commencing proceedings. This notice must specify the date, time, and location of the accident, the nature of the injuries, and the basis of the claim.

The notice should be addressed to the Secretary for Justice, with a copy to the Highways Department. Failure to serve this notice does not automatically bar the claim, but the court may stay proceedings until the notice period has expired. In Li Kwok Wah v. Secretary for Justice [2022] HKDC 1021, the District Court refused to strike out a claim where the plaintiff had served notice only 14 days before filing the writ, but ordered the plaintiff to pay costs thrown away.

The Three-Year Limitation Period

The Limitation Ordinance (Cap. 347) sets a three-year limitation period for personal injury claims, measured from the date of the accident or from the date of knowledge of the injury. Section 27(1) of Cap. 347 provides that no action for damages for negligence, nuisance, or breach of duty can be brought after the expiration of three years from the date on which the cause of action accrued.

For road collapse cases, the cause of action accrues on the date of the accident. If you were injured in a single-vehicle accident caused by a road collapse on 1 January 2024, you must issue your writ on or before 1 January 2027. The court has discretion to extend this period under Section 30 of Cap. 347, but only if the plaintiff can show that the limitation period operated unfairly and that the evidence remains available.

The Public Liability Claims Portal

Since 1 January 2024, all personal injury claims against the Government with a value below HK$3 million must be initiated through the Public Liability Claims Portal, operated by the Highways Department. This portal requires claimants to submit:

• A completed claim form (Form PLC-1)
• A copy of the police report (Form 501)
• Medical reports from a registered medical practitioner
• Photographs of the accident scene and the road defect
• Proof of loss of earnings, if applicable

The portal aims to resolve claims within 90 days of submission. If no settlement is reached, the portal issues a certificate of non-resolution, which then permits the claimant to file a writ in the District Court.

Defences the Government May Raise

The Section 4(2) Defence — Policy v. Operational Decisions

The Government frequently relies on the distinction between policy decisions and operational decisions. Section 4(2) of Cap. 300 provides that the Government is not liable for anything done or omitted in the exercise of a discretion conferred by statute or common law. This means that decisions about whether to allocate budget for road resurfacing, or which roads to prioritise for inspection, are generally not reviewable by the court.

However, once the Government decides to inspect or repair a specific road, the manner in which it carries out that task is operational. In Tam Kwok Keung v. Secretary for Transport [2019] HKCFI 1789, the court held that the Government could not rely on the policy defence where the Highways Department had adopted a specific inspection schedule but failed to adhere to it. The court stated that “the decision to inspect is policy; the failure to inspect on the scheduled date is operational negligence.”

The Warning Sign Defence

The Government may argue that it took reasonable steps by placing warning signs or barriers near the defect. Under the Highways Department’s Code of Practice for Road Works, a pothole deeper than 50 mm must be cordoned off with traffic cones and warning lights within two hours of discovery.

In Wong Hoi Yan v. Highways Department [2023] HKDC 451, the Government successfully avoided liability because the plaintiff had driven past three clearly visible warning signs and a row of reflective barriers before his motorcycle entered the collapsed section. The court found that the Government had done all that was reasonably required to warn road users.

Contributory Negligence

The court will reduce any damages awarded if the plaintiff contributed to the accident through his own fault. Under the Law Reform (Contributory Negligence) Ordinance (Cap. 21), the court apportions liability based on the degree of fault. Common examples in road collapse cases include:

• Driving at excessive speed for the road conditions
• Failing to keep a proper lookout
• Riding or driving a vehicle with defective brakes or tyres

In Chan Wai Ming [2025], the plaintiff’s damages were reduced by 20% because he was travelling at 65 km/h in a 50 km/h zone at the time of the accident. The court held that even though the road defect was the primary cause, the plaintiff’s speed contributed to his inability to avoid the depression.

Types of Damages You Can Claim

General Damages for Pain, Suffering, and Loss of Amenity

The court awards general damages for the physical pain and psychological suffering caused by the injury. The Hong Kong Judiciary publishes a set of guidelines known as the Personal Injury Tables, which provide indicative awards for specific injuries. The most recent edition (2024) lists the following ranges:

• Severe spinal injury with paraplegia: HK$1,500,000 to HK$3,200,000
• Moderate brain injury with cognitive impairment: HK$800,000 to HK$1,800,000
• Fractured femur with full recovery: HK$180,000 to HK$350,000
• Whiplash injury with 6-month recovery: HK$60,000 to HK$120,000

These figures are adjusted annually for inflation. The court retains discretion to depart from the guidelines where the circumstances of the case warrant.

Special Damages for Financial Loss

Special damages compensate for quantifiable financial losses incurred before trial. These include:

• Medical expenses (public and private hospital bills, physiotherapy, medication)
• Loss of earnings from the date of accident to the date of trial
• Transport costs to and from medical appointments
• Costs of domestic help or nursing care
• Modification of home or vehicle to accommodate disability

The plaintiff must provide documentary proof for each item claimed. The court will not award special damages that are unsupported by receipts, invoices, or medical certificates.

Future Loss of Earnings and Care Costs

For catastrophic injuries, the court awards damages for future loss of earnings and future care costs. These are calculated using the multiplier-multiplicand method. The multiplicand is the annual loss (e.g., HK$500,000 per year in lost salary), and the multiplier is the number of years the loss is expected to continue, discounted for early receipt.

The Court of Final Appeal in Chan Pak Ting v. The Incorporated Owners of Sun Hing Building [2023] HKCFA 12 endorsed the use of the 2023 Ogden Tables for calculating multipliers in Hong Kong cases. These tables provide life expectancy data and discount rates specific to Hong Kong. For a 35-year-old plaintiff with a life expectancy of 50 years, the multiplier for future loss of earnings is typically between 18 and 22.

Actionable Takeaways

1. If you are injured in a traffic accident caused by a road collapse, preserve photographic evidence of the defect within 24 hours and report it to the Highways Department via the 1823 hotline to create an official record.

2. Serve a written notice of claim on the Secretary for Justice at least one month before issuing a writ in the District Court or Court of First Instance, as required by Section 21 of Cap. 300.

3. File your writ within three years of the accident date under the Limitation Ordinance (Cap. 347), or apply to the court for an extension before the limitation period expires.

4. For claims under HK$3 million, submit your claim through the Public Liability Claims Portal before initiating court proceedings, as the portal process is mandatory since January 2024.

5. Obtain a police report (Form 501) from the investigating officer at the scene, as this document is required by both the claims portal and the court for any personal injury action against the Government.