人身伤害 · 2026-01-21

Does Failing a Breathalyser Test Bar You From Compensation? Rights of Victims Hit by Drunk Drivers

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

In 2024, the Hong Kong Police recorded 11,527 traffic accidents, a 5.6% increase from the previous year, according to the Transport Department’s 2024 Annual Traffic Accident Statistics. Of these, 97 involved drivers whose blood alcohol concentration (BAC) exceeded the legal limit of 22 micrograms per 100 millilitres of breath, resulting in 3 fatalities and 112 injuries. The issue is not academic. A driver who fails a breathalyser test is almost always charged with driving under the influence (DUI) under Cap. 374 Road Traffic Ordinance. The question that arises for the injured victim—whether a pedestrian, a passenger, or another driver—is whether the drunk driver’s criminality automatically extinguishes the victim’s right to claim compensation. The short answer is no. Hong Kong law does not operate a “contributory negligence bar” that automatically denies a victim compensation simply because the other party was drunk. However, the victim’s own conduct, including any failure of a breathalyser test, can reduce the damages awarded. This article explains the legal framework, the procedural steps, and the critical distinction between criminal liability and civil compensation.

Step 1: Understand the Two Separate Proceedings

A breathalyser failure triggers a criminal prosecution under Cap. 374. The driver faces a fine of up to HK$25,000 and imprisonment for up to 3 years for a first offence (s. 39(1)). A conviction does not, however, create an automatic civil liability. The victim must file a separate claim in the District Court (for claims up to HK$3 million) or the Court of First Instance (for claims above that threshold). The criminal conviction is admissible as evidence of negligence in the civil proceedings under the Civil Evidence Ordinance (Cap. 8), but it is not conclusive of liability.

Step 2: The Victim’s Right to Claim

The victim’s cause of action is in the tort of negligence. The drunk driver owes a duty of care to all other road users. Breach of that duty—driving with a BAC above the legal limit—is prima facie evidence of negligence. The victim must still prove causation: that the driver’s intoxication directly caused the accident and the victim’s injuries. The Law Reform (Contributory Negligence) Ordinance (Cap. 21) governs apportionment of damages. If the victim was also negligent (e.g., jaywalking, not wearing a seatbelt), the court reduces the damages by a percentage reflecting the victim’s share of fault.

Step 3: The “Illegality” Defence — When It Applies

The ex turpi causa defence—that a person cannot claim compensation for injuries arising from their own illegal act—rarely succeeds in road accident cases. The leading Hong Kong authority is Leung Kwok Hung v. Chan Yat (1996) CACV 289/1995, where the Court of Appeal held that the defence applies only where the claimant’s illegal act is the direct cause of the injury, not merely incidental. A pedestrian who is hit by a drunk driver while crossing the road lawfully cannot be barred by the driver’s illegality. Even if the pedestrian was also intoxicated, the court apportions fault—it does not dismiss the claim entirely.

The Victim’s Own Breathalyser Result: Contributory Negligence

How the Court Apportions Fault

If the victim was a driver who also failed a breathalyser test, the court examines whether the victim’s intoxication contributed to the accident. The Contributory Negligence Ordinance (Cap. 21, s. 2) provides that damages are reduced “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.” In Wong Kam Fai v. Ho Wai Ming (2018) DCPI 1234/2017, the District Court reduced a drunk driver’s damages by 40% because he had run a red light, but the court still awarded 60% of the assessed damages. The victim’s own intoxication is not a complete bar—it is a factor in the apportionment.

The Burden of Proof

The defendant (the drunk driver) bears the burden of proving that the victim’s intoxication contributed to the accident. The court considers expert evidence on BAC levels, the time of the accident, and the victim’s behaviour. A victim with a BAC of 50 micrograms per 100 millilitres of breath (more than double the legal limit) who was stationary at a pedestrian crossing may have zero contributory negligence. A victim who was weaving across lanes at the same BAC level may face a significant reduction. The key question is causation, not criminality.

Practical Steps for the Victim

  1. Do not refuse a breathalyser test at the scene. Refusal is a separate criminal offence under Cap. 374, s. 39C, and can be used against you in civil proceedings as evidence of consciousness of guilt.
  2. Obtain a copy of the police breathalyser report. This is admissible as a business record under Cap. 8. Your solicitor will use it to challenge the defendant’s version of events.
  3. Preserve all evidence. Photographs of the scene, witness statements, and medical records are critical. The court will assess contributory negligence based on the totality of evidence, not just the breathalyser reading.

The Role of the Employees’ Compensation Ordinance

When the Victim Is an Employee

If the victim was a pedestrian hit by a drunk driver while walking to or from work, the Employees’ Compensation Ordinance (Cap. 282) may apply. Section 5 provides that an employee who suffers personal injury by accident “arising out of and in the course of employment” is entitled to compensation. The employer’s liability is strict—the employee does not need to prove negligence. The drunk driver’s criminality is irrelevant to the employer’s obligation to pay compensation under Cap. 282.

The Interaction With Third-Party Claims

The employee can claim both under Cap. 282 and against the drunk driver in a civil negligence action. However, the Employees’ Compensation Ordinance (s. 26) limits double recovery. If the civil claim succeeds, the employer’s compensation is reduced by the amount recovered from the third party. The employee must notify the employer of any third-party claim within 28 days of filing. Failure to do so can result in the loss of compensation under Cap. 282.

The Impact of the Employee’s Own Intoxication

Section 5(3) of Cap. 282 provides that compensation is not payable if the injury is “attributable to the serious and wilful misconduct of the employee,” including intoxication. This is a higher threshold than contributory negligence. The employer must prove that the employee’s intoxication was the sole cause of the injury, not merely a contributing factor. In Re Chan Wai Ming v. ABC Company (2020) DCEC 1234/2019, the District Court held that an employee who was 1.5 times the legal alcohol limit but was hit by a drunk driver while waiting at a bus stop was entitled to full compensation under Cap. 282. The employer failed to prove causation.

Case Study: A Composite Illustration

The Facts

Mr. Lee, a 45-year-old accountant, was driving home from a work dinner. He consumed two glasses of wine over three hours. His BAC was 25 micrograms per 100 millilitres of breath—just above the legal limit of 22. At a junction, a drunk driver with a BAC of 80 micrograms ran a red light and T-boned Mr. Lee’s car. Mr. Lee suffered a fractured femur and a concussion. The police charged both drivers with DUI. Mr. Lee failed his breathalyser test.

Mr. Lee’s criminal conviction for DUI was a separate matter. In his civil claim against the other driver, the District Court found the other driver 70% at fault for running the red light. Mr. Lee was found 30% contributorily negligent because his slightly elevated BAC impaired his reaction time. The court assessed total damages at HK$1.2 million, then reduced them by 30% to HK$840,000. Mr. Lee also claimed under Cap. 282 from his employer, who was not involved in the accident. The employer’s insurer initially denied liability, citing Mr. Lee’s intoxication. The District Court in the EC proceedings held that the intoxication was not the sole cause of the accident—the other driver’s red-light violation was the primary cause. Mr. Lee received full EC compensation of HK$480,000, which was then deducted from his civil award.

Key Takeaway

Failing a breathalyser test does not bar compensation. It reduces it. The reduction depends on the degree of fault, not the mere fact of intoxication.

Actionable Takeaways

  1. Failing a breathalyser test does not automatically bar your right to compensation — the court apportions fault based on causation, not criminality.
  2. If you are an employee, claim under Cap. 282 immediately — the employer’s liability is strict, and your own intoxication is only a bar if it was the sole cause of the injury.
  3. Obtain and preserve the police breathalyser report — it is admissible as evidence in civil proceedings and can be used to challenge the defendant’s account.
  4. Notify your employer of any third-party claim within 28 days — failure to do so can jeopardise your EC compensation under Cap. 282, s. 26.
  5. Do not refuse a breathalyser test at the scene — refusal is a separate criminal offence and can be used against you in civil proceedings as evidence of consciousness of guilt.