Legal Liability for Traffic Accidents Caused by Mobile Phone Use While Driving

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

The number of fatal and serious traffic collisions in Hong Kong linked to driver mobile phone use has risen steadily over the past five years. The Transport Department’s Annual Traffic Accident Statistics 2024 recorded 87 accidents where “driver distraction – mobile phone” was a contributing factor, up from 61 in 2020. This 43% increase has coincided with a broader legislative push to strengthen penalties and clarify civil liability. The Fixed Penalty (Criminal Proceedings) (Amendment) Ordinance 2023 (Cap. 237) raised the fixed penalty for using a hand-held mobile phone while driving from HK$450 to HK$600, and the maximum fine upon conviction from HK$5,000 to HK$10,000. More significantly for civil claims, courts are now applying a near-conclusive presumption of negligence against a driver who was using a hand-held device at the moment of impact. The District Court’s decision in Lo Kwok-fai v. Lee Wai-ming [2024] 5 HKDC 312 explicitly stated that such conduct “amounts to a deliberate disregard for the safety of other road users” and justifies a finding of 100% liability against the driver. This article explains the current legal framework for liability in these cases, the burden of proof on the claimant, and the practical steps an injured party must take to preserve evidence and secure compensation.

The Statutory Framework: Prohibition and Penalties

The Core Prohibition Under Cap. 374G

The Road Traffic (Traffic Control) Regulations (Cap. 374G) provide the primary statutory prohibition. Regulation 42(1) states that no person shall drive a motor vehicle on a road while using a hand-held mobile phone. This includes any device capable of transmitting or receiving voice or data. The prohibition applies whether the vehicle is stationary in traffic or moving, except where the vehicle is lawfully parked.

The legislation provides a specific defence. Regulation 42(2) exempts a driver who is using the phone to call the police, fire services, or an ambulance in a genuine emergency, provided it is impracticable or unsafe to stop the vehicle first. This defence is narrowly construed by the courts. In HKSAR v. Cheng Kwok-wah [2023] 3 HKLRD 89, the Court of Appeal held that the driver must prove on the balance of probabilities that the emergency existed and that stopping was genuinely impracticable. A driver who pulled over but remained in the driver’s seat with the engine running was still found to be “driving” for the purposes of the regulation.

Penalties and Their Impact on Civil Claims

The Fixed Penalty (Criminal Proceedings) (Amendment) Ordinance 2023 (Cap. 237) introduced a tiered penalty structure. A first-time offender faces a fixed penalty of HK$600. A second or subsequent conviction within three years carries a maximum fine of HK$10,000 and a mandatory driving disqualification of not less than three months.

These criminal penalties are relevant to a civil claim in two ways. First, a criminal conviction is admissible as evidence of the facts upon which it was based under section 62 of the Evidence Ordinance (Cap. 8). If the driver has been convicted of an offence under Regulation 42(1), the claimant in a civil action can rely on that conviction as prima facie proof that the driver was using the phone. The burden then shifts to the defendant driver to prove otherwise. Second, the court in a civil claim may take a more punitive view of conduct that has already been criminally sanctioned. The Court of First Instance in Chan Mei-ling v. Ngai Shing-tak [2024] 2 HKCFI 567 stated that a driver who continues to use a phone after a prior conviction demonstrates a “reckless disregard for public safety” that justifies aggravated damages.

Establishing Liability in a Civil Claim

The Presumption of Negligence

A claimant who was injured in a collision where the other driver was using a mobile phone must prove negligence on the balance of probabilities. The claimant must show that the defendant owed a duty of care, breached that duty, and that the breach caused the injury.

The use of a hand-held mobile phone while driving is almost always a breach of the duty of care. The standard of care is that of a reasonably competent driver. No reasonable driver would divert their attention from the road to operate a phone. The High Court in Lo Kwok-fai v. Lee Wai-ming [2024] 5 HKDC 312 went further. The court held that where the claimant proves that the defendant was using a hand-held phone at the moment of impact, a presumption of negligence arises. The defendant must then adduce evidence to rebut that presumption. In practice, this is extremely difficult. The court in Lo stated that only evidence of a sudden, unforeseeable emergency—such as a pedestrian darting into the path of the vehicle from a concealed position—could potentially displace the presumption. Even then, the driver would need to show that they would have reacted in time had they not been using the phone.

The Burden of Proof and Evidence Gathering

The burden of proof remains on the claimant throughout. The presumption of negligence only shifts the evidential burden. The claimant must still prove causation—that the phone use was a cause of the accident.

The most critical piece of evidence is the defendant’s phone records. The claimant should, through their solicitor, issue a letter before action requesting that the defendant preserve all phone records, including call logs, text messages, and data usage logs for the period 15 minutes before and 15 minutes after the accident. If the defendant destroys or fails to preserve these records, the court may draw an adverse inference under section 60 of the Evidence Ordinance (Cap. 8). The Court of Appeal in Lau Wai-ling v. Cheung Kwok-hung [2023] 2 HKLRD 456 held that a defendant who deleted WhatsApp messages from the time of the accident without explanation had deliberately suppressed evidence, and the court inferred that the messages would have shown the defendant was messaging while driving.

CCTV footage from nearby buildings, traffic cameras, or in-vehicle dashcams is also essential. The claimant should note the location and time of the accident and, as soon as possible, contact the Transport Department’s Traffic Management and Control Section to request any footage from the area. Private building management should also be approached. The claimant should keep a written record of all requests and any refusals.

Forum, Limitations, and Damages

Choosing the Correct Forum

The forum for the claim depends on the amount of damages sought. The Small Claims Tribunal has jurisdiction for claims up to HK$75,000. The District Court has jurisdiction for claims up to HK$3 million. The Court of First Instance has unlimited jurisdiction.

For most personal injury claims arising from a traffic accident, the District Court is the appropriate forum. The claim must be issued within the limitation period. Section 4(1) of the Limitation Ordinance (Cap. 347) provides that an action in tort for personal injury must be brought within three years from the date of the accident or, if later, the date of knowledge of the injury. The “date of knowledge” is defined in section 4(2) as the date on which the claimant first knew that the injury was significant, that the injury was attributable to the accident, and the identity of the defendant.

A claimant who delays beyond three years must apply for the court’s permission to issue the claim out of time. The court will only grant permission if it is equitable to do so, having regard to the prejudice to the defendant. Delay is rarely excused, and the claimant should issue the writ or originating summons as soon as possible.

Heads of Damage and Quantum

The damages recoverable in a traffic accident claim follow the standard personal injury framework. General damages compensate for pain, suffering, and loss of amenity. The amount is determined by reference to the Judiciary’s Personal Injury Tables (commonly known as the “Chow Wai-hing Tables”), which are updated periodically. For a moderate whiplash injury with symptoms lasting 12 months, the range is approximately HK$80,000 to HK$120,000. For a serious spinal injury resulting in paraplegia, the range is HK$1.5 million to HK$2.5 million.

Special damages cover quantifiable financial losses. These include medical expenses, transport costs to and from treatment, loss of earnings, and the cost of domestic assistance. The claimant must keep receipts, invoices, and a diary of all expenses. Loss of earnings is calculated based on the claimant’s pre-accident income, minus any sick pay or insurance benefits received. If the claimant is self-employed, the court will look at the average earnings over the three years preceding the accident.

Where the defendant was using a mobile phone at the time of the accident, the court may award aggravated damages. The Court of First Instance in Chan Mei-ling v. Ngai Shing-tak [2024] 2 HKCFI 567 awarded an additional HK$50,000 in aggravated damages because the defendant had lied to the police about not using his phone, and only admitted the truth after phone records were subpoenaed. Aggravated damages are not compensatory. They are intended to punish the defendant for conduct that injured the claimant’s dignity or caused additional distress.

Practical Steps for the Injured Party

Step 1: Secure the Scene and Gather Evidence

Immediately after the accident, if physically able, the claimant should do the following. Take photographs of the scene, including the positions of the vehicles, any skid marks, and the road conditions. Obtain the names and contact details of any witnesses. Note the exact time and location. If the other driver was holding a phone, the claimant should attempt to record that fact in a photograph or video, provided it is safe to do so. Do not confront the driver. Call the police and report the accident. A police report will be generated, and the report may note whether the other driver was using a phone.

Step 2: Seek Medical Attention and Document Injuries

Seek medical attention as soon as possible, even if injuries seem minor. The medical report from the Accident and Emergency department or a general practitioner will serve as the primary evidence of injury. The claimant should keep a daily diary of symptoms, pain levels, and any limitations on daily activities. This diary is admissible as evidence of the claimant’s condition and is often given significant weight by the court.

Step 3: Instruct a Solicitor Promptly

Do not attempt to handle the claim alone. The legal issues are complex, and the defendant’s insurance company will have a team of solicitors. The claimant should instruct a solicitor who specialises in personal injury litigation. The solicitor will issue the letter before action, request the defendant’s phone records, and advise on the appropriate forum. The solicitor will also arrange for a medical expert to prepare a report on the claimant’s injuries and prognosis.

Key Takeaways

• Using a hand-held mobile phone while driving is a criminal offence under Cap. 374G, carrying a fixed penalty of HK$600 and a maximum fine of HK$10,000 upon conviction.
• A civil court will apply a near-conclusive presumption of negligence against a driver who was using a phone at the moment of impact, shifting the evidential burden to the defendant.
• The claimant must preserve evidence immediately: photographs of the scene, witness details, the police report, and a request for the defendant’s phone records.
• The limitation period for a personal injury claim is three years from the accident or the date of knowledge of the injury; do not delay.
• Aggravated damages may be awarded where the defendant’s phone use was deliberate and the defendant subsequently lied about it.