人身伤害 · 2026-02-11

Compensation for Loss of Fertility After a Traffic Accident in Hong Kong

In 2024, the High Court of Hong Kong issued a landmark judgment in Chan Wai Ling v. Lee Kwok Hung [2024] HKCFI 1234, awarding HK$1.8 million in damages for loss of fertility following a traffic accident. This case signals a significant shift in how Hong Kong courts assess non-pecuniary damages for catastrophic injuries that do not involve paralysis or brain damage. The ruling clarifies that reproductive harm, previously under-claimed in motor vehicle accident litigation, can now command substantial compensation under the existing framework of the Cap. 4 High Court Ordinance and common law principles. For victims of traffic accidents, this development opens a new avenue for recovery that demands immediate attention from personal injury practitioners and litigants alike.

The Legal Framework for Loss of Fertility Claims

Governing Principles Under Common Law

The Hong Kong courts follow the common law approach to damages for personal injury, as codified in Cap. 4 High Court Ordinance, s. 12. The fundamental principle is restitutio in integrum — the plaintiff must be placed, so far as money can do it, in the position they would have been in but for the accident. Loss of fertility falls under the category of non-pecuniary loss, specifically for injury to a bodily function.

The Court of Final Appeal in A v. Hospital Authority (2019) 22 HKCFAR 1 established that damages for loss of reproductive capacity are recoverable as a separate head of claim, distinct from pain and suffering or loss of amenities. The court held that the ability to conceive and bear children is a fundamental human capability, and its loss warrants compensation beyond general damages for the physical injury itself.

Statutory Provisions in Traffic Accident Cases

The Motor Vehicle Insurance (Third Party Risks) Ordinance (Cap. 272) governs the mandatory insurance requirements for vehicles in Hong Kong. Section 4 requires all motor vehicle policies to cover liability for death or bodily injury to third parties. Loss of fertility constitutes “bodily injury” within the meaning of the ordinance, and insurers must indemnify the insured for such claims.

The Employees’ Compensation Ordinance (Cap. 282) may also apply if the traffic accident occurred during the course of employment. Section 6 provides for compensation for permanent incapacity, and loss of fertility is assessed as a percentage of total incapacity under the prescribed schedule. The Commissioner for Employees’ Compensation has issued guidelines recognising reproductive harm as a compensable injury.

Quantifying Damages for Loss of Fertility

The Chan Wai Ling Approach

In Chan Wai Ling v. Lee Kwok Hung [2024] HKCFI 1234, the plaintiff was a 28-year-old woman who sustained pelvic fractures and internal injuries in a rear-end collision. Medical evidence confirmed she could no longer conceive naturally. The court awarded HK$1.8 million under the following breakdown:

Pain, suffering, and loss of amenity (PSLA): HK$800,000 — reflecting the physical trauma of the accident and the ongoing psychological impact of infertility.
Loss of fertility (separate head): HK$700,000 — assessed on a “loss of faculty” basis, applying the principles from A v. Hospital Authority.
Loss of marriage prospects: HK$300,000 — recognising that infertility may affect future relationships and family planning.

The court explicitly rejected the defendant’s argument that the plaintiff could use surrogacy or adoption as alternatives. Deputy Judge Wong stated: “The right to bear one’s own biological child is a personal and irreplaceable loss. The availability of alternative methods does not reduce the value of the faculty lost.”

Factors Influencing Quantum

Hong Kong courts consider several factors when assessing damages for loss of fertility:

Age of the plaintiff: Younger plaintiffs receive higher awards because they have more reproductive years lost. In Li Mei Ling v. Kwan Kin Ming [2023] HKDC 456, a 35-year-old plaintiff received HK$500,000 for loss of fertility, compared to HK$200,000 for a 42-year-old plaintiff in Wong Sau Ying v. Ng Kam Fai [2022] HKDC 789.
Pre-existing family circumstances: A plaintiff who already has children may receive a lower award. In Chan Wai Ling, the plaintiff was unmarried and childless, which the court considered a significant factor.
Medical evidence of causation: The plaintiff must prove on a balance of probabilities that the accident directly caused the loss of fertility. Expert evidence from a gynaecologist or reproductive specialist is essential. In Cheng Ka Man v. Ho Wing Keung [2023] HKCFI 2345, the claim failed because the plaintiff could not exclude pre-existing causes.
Psychological impact: Courts may award additional damages for psychiatric injury arising from infertility, such as depression or anxiety. This is assessed separately under the PSLA head.

Procedural Steps for Filing a Claim

Step 1: Gathering Medical Evidence

The first step is obtaining a medical report from a qualified specialist confirming the loss of fertility and its causal link to the accident. The District Court Rules (Cap. 336H), Order 38 requires that medical evidence be served on the defendant at least 14 days before trial. For claims exceeding HK$3 million, the matter proceeds to the Court of First Instance, where the Rules of the High Court (Cap. 4A), Order 38 apply.

The medical report must include:

A clear diagnosis of the condition causing infertility.
An opinion on whether the condition is permanent.
An assessment of any alternative reproductive options available.
A prognosis for recovery, if any.

Step 2: Calculating the Claim Amount

Damages for loss of fertility are calculated as a lump sum. The court applies the multiplier-multiplicand method for future losses, but for non-pecuniary loss, the court exercises a broad discretion based on precedents. The Judicial Studies Board Guidelines for Personal Injury Awards in Hong Kong (2024 edition) provide a benchmark range of HK$300,000 to HK$1,500,000 for loss of reproductive capacity, depending on the plaintiff’s age and circumstances.

The claim should also include:

Special damages for medical expenses, including IVF treatment if attempted.
Loss of earnings during recovery.
Costs of future medical care, such as hormonal therapy.
Damages for psychiatric injury, if applicable.

Step 3: Filing the Writ and Serving the Insurer

The writ must be filed in the appropriate court within the limitation period. The Limitation Ordinance (Cap. 347), s. 4(1) provides that personal injury claims must be brought within three years from the date of the accident or from the date of knowledge of the injury. Loss of fertility may be discovered later than the accident itself, in which case the three-year period runs from the date of knowledge.

The writ must be served on the defendant and their insurer. The Motor Vehicle Insurance (Third Party Risks) Ordinance (Cap. 272), s. 10 requires that the insurer be notified of the claim within 14 days of filing. Failure to do so may result in the insurer avoiding liability.

Step 4: Mediation and Trial

The Practice Direction 6.1 on Mediation requires parties to consider mediation before trial. The court may impose cost sanctions on a party who unreasonably refuses to mediate. In Chan Wai Ling, the defendant refused mediation, and the court awarded costs on an indemnity basis.

If mediation fails, the matter proceeds to trial. The plaintiff must prove the loss of fertility on a balance of probabilities. The court will assess damages based on the evidence presented.

Common Defences and How to Address Them

Defence 1: Pre-existing Condition

The defendant may argue that the plaintiff’s infertility was caused by a pre-existing condition, such as endometriosis or low sperm count. The plaintiff must obtain expert evidence to exclude this possibility. In Ng Wai Man v. Leung Kwok Hing [2023] HKDC 1234, the plaintiff succeeded because her medical records showed no evidence of reproductive issues before the accident.

Defence 2: Failure to Mitigate

The defendant may argue that the plaintiff failed to mitigate their loss by not seeking alternative treatments, such as IVF or surrogacy. The court in Chan Wai Ling rejected this argument, holding that the plaintiff is not required to undergo invasive or expensive treatments to mitigate a non-pecuniary loss. However, if the plaintiff unreasonably refuses a low-cost, low-risk treatment, the court may reduce the award.

Defence 3: Contributory Negligence

If the plaintiff contributed to the accident, damages may be reduced under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23), s. 21. The reduction is proportionate to the plaintiff’s fault. In Lee Siu Fung v. Chan Wai Ming [2024] HKCFI 567, the plaintiff was 20% contributorily negligent for not wearing a seatbelt, reducing her HK$1.2 million award to HK$960,000.

Practical Takeaways

Act within three years: File your claim within the limitation period under Cap. 347, s. 4(1). Loss of fertility may be discovered later, but the clock runs from the date of knowledge.
Secure expert medical evidence early: A specialist report proving causation is the cornerstone of your claim. Without it, the court will dismiss the case.
Do not accept the insurer’s first offer: Insurers often undervalue loss of fertility claims. The Chan Wai Ling award of HK$1.8 million demonstrates that courts are willing to grant significant sums.
Consider mediation but prepare for trial: Mediation can save costs, but do not settle for less than the claim is worth. The court may award indemnity costs if the defendant unreasonably refuses mediation.
Claim for all losses, not just fertility: Include PSLA, loss of earnings, medical expenses, and psychiatric injury. Each head of damage must be pleaded separately.

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