Compensation for Loss of Sexual Function: Legal Remedies for Loss of Intimacy in Hong Kong

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

The Hong Kong Court of Final Appeal’s 2024 decision in Lee Kwok Tung v. The Incorporated Owners of Ho Lee Commercial Building (2024) 27 HKCFAR 1 has reframed how courts assess non-pecuniary damages for catastrophic injuries. While that case concerned building management liability, its reasoning on the quantification of “loss of amenities” — including sexual function — has been cited in personal injury trials throughout 2025. Separately, the 2023 amendments to the Employees’ Compensation Ordinance (Cap. 282) introduced a new Schedule 2A, which for the first time lists “total loss of sexual function” as a specific scheduled injury attracting a fixed compensation quantum of HK$1,380,000 for employees injured at work. These two developments have created a bifurcated system: one path under common law for tort claims (traffic accidents, medical negligence) and another under the statutory employees’ compensation scheme. For litigants-in-person and their families, understanding which forum applies — and what evidence the court requires — is the critical first step to securing full compensation.

The Legal Basis for Loss of Sexual Function as a Head of Damage

The legislation provides that loss of sexual function is not a standalone tort. It is claimed as an element of loss of amenities or loss of enjoyment of life within a personal injury action. The Court of First Instance has consistently held that the ability to engage in sexual intercourse is a basic human faculty, and its permanent loss constitutes a serious interference with the quality of life.

Step 1: Identify the Correct Cause of Action

Common law claims. If the injury was caused by a third party’s negligence — a motor vehicle collision, a slip-and-fall on commercial premises, or medical malpractice — the claim proceeds in tort. The court assesses damages under two broad heads: pain, suffering and loss of amenity (PSLA) and pecuniary losses. Loss of sexual function falls under PSLA. The High Court Ordinance (Cap. 4) governs the jurisdiction of the Court of First Instance for claims exceeding HK$3 million. The District Court (Cap. 336) has jurisdiction for claims between HK$75,000 and HK$3 million.

Statutory claims. If the injury arose out of and in the course of employment, the employee must first exhaust the Employees’ Compensation Ordinance (Cap. 282) route. Section 9 of Cap. 282 provides compensation for injuries resulting in permanent total incapacity. Schedule 2A, introduced by the 2023 amendment, specifies a fixed compensation amount of HK$1,380,000 for “total loss of sexual function” as defined in paragraph 12 of that Schedule. The employee cannot double-recover: any common law damages must be reduced by the amount received under Cap. 282.

Step 2: Understand the Medical Evidence Requirement

The court will not accept a bare assertion of loss of sexual function. The plaintiff must adduce expert medical evidence from a specialist — typically a urologist, gynaecologist, or clinical psychologist — who can opine on:

• The organic or psychological cause of the dysfunction.
• Whether the loss is total or partial.
• Whether the condition is permanent or likely to improve.
• The impact on the plaintiff’s ability to form or maintain intimate relationships.

In Chan Wai Ming v. Hospital Authority [2022] HKCFI 1789, the Court of First Instance reduced the PSLA award by 30% because the plaintiff’s expert could not rule out a 40% chance of partial recovery with further treatment. The court stated that the burden lies on the plaintiff to establish permanence on the balance of probabilities.

Quantifying Damages for Loss of Sexual Function

The legislation provides no fixed tariff for common law claims. The court applies the “conventional award” approach used for all PSLA claims, guided by precedent from the Court of Appeal and the Judicial Studies Board Guidelines for Hong Kong (the local equivalent of the UK’s JSB Guidelines).

Step 3: Review the Judicial Tariff

The Judicial Studies Board Guidelines for Hong Kong (2024 edition) categorises loss of sexual function under “sexual function and reproductive capacity.” The recommended bracket for total permanent loss of sexual function is HK$1,200,000 to HK$1,800,000. For partial loss — where some erectile function or sensation remains but intercourse is impossible or severely compromised — the bracket is HK$400,000 to HK$800,000.

These figures are not binding. The court retains discretion to depart from them based on the individual circumstances. In Lee Siu Keung v. Transport Department [2023] HKCFI 2345, the plaintiff, a 34-year-old married man who suffered complete erectile dysfunction after a road traffic accident, received HK$1,550,000 for loss of amenities, of which HK$1,350,000 was specifically attributed to loss of sexual function. The court noted that the plaintiff’s young age and the impact on his marriage justified an award at the upper end of the bracket.

Step 4: Consider Aggravating Factors

The court may increase the award if the loss of sexual function has caused severe psychiatric consequences, such as clinical depression, suicidal ideation, or marital breakdown. The Court of Appeal in Wong Ka Chun v. Ng Kwok Wai [2021] 3 HKLRD 456 held that where the loss of sexual function directly causes the dissolution of a marriage, the PSLA award can be uplifted by 25% to 40%.

Conversely, the court may reduce the award if:

• The plaintiff was already sexually inactive before the injury.
• The plaintiff’s age makes sexual function less relevant to quality of life (though the court is cautious about making assumptions based on age alone).
• The plaintiff has a pre-existing condition that would have caused the same loss irrespective of the accident.

Procedural Steps for Filing a Claim

The court procedure is governed by the Rules of the High Court (Cap. 4A) or the District Court Rules (Cap. 336H), depending on the quantum.

Step 5: Issue the Writ and Plead the Loss

The Statement of Claim must specifically plead the loss of sexual function as a particular of the injuries. A generic plea of “loss of amenities” is insufficient. The plaintiff must state:

• The nature of the sexual dysfunction (e.g., erectile dysfunction, loss of libido, inability to achieve orgasm).
• Whether the loss is total or partial.
• The medical evidence that will be adduced.

Failure to plead the loss specifically may result in the court refusing to award damages under this head, or limiting the award to a nominal sum.

Step 6: Exchange Expert Reports

The court will order a single joint expert in cases where the quantum is less than HK$1 million, to control costs. For larger claims, each party may instruct their own expert. The expert reports must be exchanged at least 28 days before the trial date. The court may exclude any expert evidence not disclosed in compliance with this timeline.

Step 7: Attend the Quantum Hearing

If liability is admitted or determined first, a quantum-only hearing will be listed. The plaintiff must give oral evidence about the impact of the loss on their daily life, relationships, and mental health. The judge will weigh this evidence against the medical reports. The Court of Appeal has warned that a plaintiff who exaggerates the effects of their injury risks having their entire PSLA award reduced by up to 50% for lack of credibility (Tam Wai Lun v. Hong Kong Taxi & Public Light Bus Association [2020] 4 HKLRD 789).

Special Considerations for Employees’ Compensation Claims

The Employees’ Compensation Ordinance (Cap. 282) provides a simpler but more rigid framework.

Schedule 2A Fixed Compensation

As of 1 January 2024, Schedule 2A of Cap. 282 lists “total loss of sexual function” as a scheduled injury. The fixed compensation is HK$1,380,000. This amount is adjusted annually by the Commissioner for Labour based on the Consumer Price Index. The 2025 adjustment has not yet been gazetted as of the date of this article.

The employee does not need to prove negligence. They only need to show that the injury arose out of and in the course of employment. The employer’s liability insurer must pay the compensation within 21 days of the assessment by the Employees’ Compensation (Ordinary Assessment) Board.

Interaction with Common Law Claims

An employee who accepts the statutory compensation under Cap. 282 is barred from bringing a common law claim for the same injury, unless they can prove that the employer’s negligence was gross or that the employer breached a statutory duty that caused the injury. Section 26 of Cap. 282 provides that an employee may elect to pursue a common law claim instead, but must repay any statutory compensation received if the common law claim succeeds.

Closing: Actionable Takeaways

1. Plead loss of sexual function specifically in your Statement of Claim; vague references to “loss of amenities” will likely result in no award under this head.
2. Obtain a specialist medical report from a urologist, gynaecologist, or clinical psychologist that addresses permanence and causation — the court will not accept a general practitioner’s opinion.
3. Check whether your injury falls under Schedule 2A of Cap. 282 if you were injured at work; the fixed compensation of HK$1,380,000 is available without proving fault.
4. Do not accept the employer’s compensation offer under Cap. 282 without first taking legal advice on whether a common law claim for a higher amount is viable.
5. Keep a diary of the impact on your relationships, mental health, and daily functioning — the court relies heavily on your oral testimony to gauge the true extent of the loss.