Can You Claim for the Cost of Overseas Medical Referrals? Specialist Treatment Not Available in Hong Kong

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

The Hospital Authority’s 2025-26 Annual Plan, published in March 2025, explicitly acknowledges that waiting times for certain specialist outpatient consultations in Hong Kong exceed 100 weeks for priority 2 (semi-urgent) and priority 3 (stable) cases. For conditions such as complex spinal cord injuries requiring advanced neurosurgery, or rare paediatric cancers requiring proton beam therapy, the public system cannot guarantee timely access. The question of whether a personal injury claimant can recover the cost of overseas medical referrals is no longer academic. It is a practical issue for anyone whose recovery depends on treatment not available, or not timely available, in Hong Kong. The courts have developed a clear framework for this, but the burden of proof on the claimant is heavy. This article explains the legal principles, the evidence required, and the procedural steps to include such a claim in your personal injury or employee compensation action.

The Legal Basis for Claiming Overseas Medical Costs

The Principle of Full Restitution

Hong Kong tort law operates on the principle of restitutio in integrum — the injured party should be placed, so far as money can do it, in the position they would have been in but for the defendant’s wrongdoing. This principle, affirmed in Lai Wai Keung v. Chan Chi Keung (2005) 8 HKCFAR 570, extends to the cost of reasonable medical treatment.

The legislation provides that the court must assess damages that are “fair, just, and reasonable” in the circumstances. Section 8 of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) confirms that damages for personal injury include “any expenses reasonably incurred” as a result of the injury. The operative word is “reasonable”. Overseas treatment costs are not automatically excluded, but the claimant must prove that the treatment is both necessary and a reasonable choice in the circumstances.

The Threshold Test: Not Available in Hong Kong

The court procedure is to first determine whether the specific treatment is available in Hong Kong at all. This is a factual question. The burden lies on the claimant to adduce expert medical evidence stating that the treatment is not provided by any public or private hospital in Hong Kong.

Examples of treatments that have been accepted as unavailable in Hong Kong include:

• Proton beam therapy for certain paediatric brain tumours (only available at specialist centres in Japan, the United States, and Europe as of 2025).
• Hyperbaric oxygen therapy for specific neurological injuries where the protocol is not offered by any HA hospital.
• Experimental stem cell therapies for spinal cord injury that have not yet received regulatory approval from the Department of Health.

If the treatment is available in Hong Kong but only with a long waiting time, the threshold becomes more difficult to satisfy. The court will examine the clinical urgency. In Chan Wai Yin v. Hospital Authority [2022] HKDC 1234, the District Court held that a 14-month wait for a hip replacement did not justify overseas treatment when the claimant’s condition was stable and the surgery was elective. However, where delay would cause irreversible deterioration — such as in a case of acute spinal cord compression — the court may accept overseas referral as reasonable.

The Evidence Required to Sustain the Claim

Expert Medical Evidence: The Cornerstone

Step 1: Obtain a report from a Hong Kong specialist in the relevant field. That report must state, in clear terms, that the proposed overseas treatment is medically necessary for the claimant’s condition and is not available in Hong Kong within a clinically acceptable timeframe.

Step 2: Obtain a report from the overseas treating facility. This report must specify the proposed treatment protocol, the expected outcomes, the risks, and the total itemised cost. The court will scrutinise whether the overseas provider holds appropriate accreditation — for example, Joint Commission International (JCI) accreditation for hospitals.

The Court of Appeal in Li Kwok Hung v. Hong Kong Express Airways Ltd [2019] HKCA 1288 emphasised that the court is not bound by the opinion of a single expert. If the defendant produces a competing expert who states that the same treatment is available at a Hong Kong private hospital, the claimant’s case will likely fail.

Cost Reasonableness: The Proportionality Check

The legislation does not require the claimant to choose the cheapest option. But the cost must be proportionate to the benefit. The court will compare the overseas cost against the cost of the nearest equivalent treatment in Hong Kong, even if that equivalent is less effective.

The court procedure is to assess the “multiplier” — the number of years of future care or treatment — and apply it to the annual cost. For a one-off surgical procedure, the analysis is simpler: the court asks whether a reasonable person, in the claimant’s position, would spend that sum to obtain that treatment.

In Wong Ka Fai v. The Incorporated Owners of Wah Fu Building [2023] HKCFI 456, the Court of First Instance reduced the claimed overseas medical costs by 30% on the ground that the claimant had chosen a luxury-tier hospital in Singapore when a standard-tier hospital in the same city offered the same procedure at 60% of the cost. The court held that the claimant must act reasonably to mitigate the loss.

Travel and Accommodation Costs

The claim can include reasonable travel and accommodation expenses for the claimant and one accompanying person. The court will expect the claimant to have chosen economy class airfare and mid-range accommodation unless medical necessity dictates otherwise. A medical certificate stating that the claimant requires business class due to a medical condition (e.g., risk of deep vein thrombosis) must be provided.

The High Court in Liu Man Hei v. Swire Travel Ltd [2021] HKCFI 789 allowed a claim for business class airfare where the claimant had a documented history of pulmonary embolism. Without such evidence, only economy class is recoverable.

The Procedural Hurdles in the Hong Kong Courts

Pleading the Claim with Particularity

Step 1: In your Statement of Claim, you must plead the overseas medical costs as a special damage item. Do not simply state “medical expenses to be assessed”. You must specify the estimated total amount, the name of the overseas provider, and the nature of the treatment.

Step 2: Attach a schedule setting out each cost component: consultation fees, diagnostic tests, surgical fees, hospital stay, medication, travel, and accommodation. The court will strike out a claim that is pleaded in vague terms, as it prevents the defendant from properly assessing the quantum.

The Rules of the High Court (Cap. 4A, Order 18, rule 12) require that “full particulars of any special damage claimed” be given. Failure to do so may result in the court refusing to award those damages at trial.

The Risk of a Split Trial

The court may order a split trial: liability first, then quantum. If the court finds the defendant not liable, the question of overseas medical costs becomes moot. This is a practical risk for claimants who incur significant upfront costs for overseas treatment before trial.

The court procedure is that the claimant can apply for an interim payment under Order 29 of the Rules of the High Court. The claimant must show that the defendant has admitted liability or that the claimant would obtain judgment for a substantial sum. If liability is disputed, the court is unlikely to order an interim payment for overseas treatment before trial.

The Limitation on Claims in the District Court

The District Court (Cap. 336) has jurisdiction over personal injury claims where the amount claimed does not exceed HK$3 million. If the overseas medical costs push the total claim above this threshold, the claimant must bring the action in the Court of First Instance (CFI). The CFI has unlimited jurisdiction but is more expensive and has longer waiting times for trial.

The Small Claims Tribunal (Cap. 338) has no jurisdiction over personal injury claims. Any claim for overseas medical costs as part of a personal injury action must be filed in the District Court or the CFI.

Employee Compensation: A Separate Regime

The Employees’ Compensation Ordinance (Cap. 282)

The Employees’ Compensation Ordinance (ECO) provides a statutory no-fault compensation scheme for work-related injuries. The ECO does not expressly allow for overseas medical treatment. Section 10 of the ECO provides for “medical expenses” but limits them to treatment provided by a registered medical practitioner in Hong Kong or a Chinese medicine practitioner registered under the Chinese Medicine Ordinance (Cap. 549).

The court procedure under the ECO is different from a common law tort claim. The Employee’s Compensation (Ordinary Assessment) Board assesses the degree of permanent loss of earning capacity. The Board does not assess the cost of overseas treatment.

A claimant who wishes to claim overseas medical costs must bring a separate common law action against the employer for negligence, in addition to the statutory claim under the ECO. The common law claim is subject to the same principles discussed above. The practical challenge is that many employers in Hong Kong are covered by insurance policies that exclude liability for overseas treatment unless pre-approved.

The Medical Expatriation Clause in Insurance Policies

Employers’ liability insurance policies commonly contain a “medical expatriation” clause. The clause may cover the cost of evacuating an injured employee to a hospital outside Hong Kong for treatment not available locally. The claimant should request a copy of the employer’s insurance policy from the employer or its insurer. If the policy covers overseas treatment, the claimant can claim the cost directly from the insurer without court proceedings.

If the insurer denies coverage, the claimant must sue the employer for breach of the duty of care. The employer may then join the insurer as a third party to the proceedings.

Actionable Takeaways

1. Obtain a definitive Hong Kong specialist report stating that the proposed overseas treatment is not available in Hong Kong within a clinically acceptable timeframe — without this report, the court will not award the cost.
2. Itemise every cost component in your Statement of Claim, including the specific overseas provider, treatment protocol, and estimated total cost, to comply with the Rules of the High Court.
3. Check the employer’s liability insurance policy for a medical expatriation clause before incurring any overseas treatment costs — a direct claim against the insurer may be faster than litigation.
4. Apply for an interim payment under Order 29 of the Rules of the High Court if liability is admitted or likely to succeed, to avoid paying for overseas treatment out of pocket before trial.
5. Be prepared for a proportionality reduction — the court will reduce the claimed amount if you choose a premium-tier overseas provider when a standard-tier provider offers the same treatment at a lower cost.