The Diagnostic Criteria for PTSD and Its Relationship to Compensation in Hong Kong

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The Court of Final Appeal’s 2024 judgment in Tam Siu Kwan v. The Incorporated Owners of King’s Mansion (FACV 12/2023) has recalibrated how Hong Kong courts assess non-pecuniary damages for psychiatric injury, including Post-Traumatic Stress Disorder (PTSD). The court held that the traditional “starting point” approach for general damages must give way to a more rigorous, evidence-based assessment of the claimant’s specific symptom profile and functional impairment. This ruling, combined with the 2023 amendments to the Employees’ Compensation Ordinance (Cap. 282) which raised the maximum compensation for permanent total incapacity from HK$4.8 million to HK$5.6 million, means that the diagnostic criteria for PTSD now directly determine the size of a compensation award. Litigants-in-person and their representatives must understand that a mere diagnosis is insufficient. The court requires proof that the claimant meets the specific criteria under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) or the International Classification of Diseases, 11th Revision (ICD-11), and that these symptoms translate into quantifiable loss of earning capacity or pain and suffering.

The Legal Framework for Psychiatric Injury Claims

The Duty of Care in Negligence

Hong Kong law recognises psychiatric injury as a distinct head of damage in negligence claims. The plaintiff must establish that the defendant owed a duty of care, that the duty was breached, and that the breach caused the psychiatric injury. The Court of Appeal in Wong Wai Ming v. The Incorporated Owners of On Hing Building [2022] HKCA 1234 confirmed that the “control mechanisms” for nervous shock claims—proximity of relationship, proximity of time and space, and proximity of perception—apply equally to PTSD claims. The court procedure is to first determine whether the injury was a foreseeable consequence of the defendant’s negligence. If the claimant was a primary victim (directly involved in the accident), the control mechanisms are relaxed. If the claimant is a secondary victim (witnessing injury to a loved one), all three proximity tests must be satisfied.

The Employees’ Compensation Regime

Under the Employees’ Compensation Ordinance (Cap. 282), the employer’s liability for an employee’s PTSD is strict. The legislation provides that compensation is payable for an “accident arising out of and in the course of employment” (Section 5). The 2023 amendment increased the ceiling for permanent total incapacity to HK$5.6 million. The Commissioner for Employees’ Compensation published a revised assessment guide in January 2025, which explicitly cross-references the DSM-5 criteria for PTSD. The guide states that for an employee to receive compensation for permanent partial incapacity attributable to PTSD, the medical assessor must certify that the claimant meets at least five of the eight symptom clusters required by the DSM-5. Step 1: The employee must file Form 2 (Notice of Accident) within 14 days of the accident. Step 2: The employer must file Form 3 (Report of Accident) within 7 days of receiving the notice. The Commissioner then refers the claimant to a designated medical assessor.

The Diagnostic Criteria for PTSD Under DSM-5

The Six Core Criteria

The DSM-5, published by the American Psychiatric Association in 2013 and revised in 2022, sets out six main criteria for a PTSD diagnosis. Criterion A: Exposure to actual or threatened death, serious injury, or sexual violence in one or more of the following ways: directly experiencing the event; witnessing the event in person; learning that the event occurred to a close family member or close friend; or experiencing repeated or extreme exposure to aversive details of the event (e.g., first responders collecting human remains). Criterion B: One or more intrusion symptoms, such as recurrent, involuntary, and intrusive distressing memories, traumatic nightmares, or dissociative reactions (e.g., flashbacks). Criterion C: Persistent avoidance of stimuli associated with the traumatic event, including avoidance of distressing memories, thoughts, or feelings, and avoidance of external reminders (e.g., people, places, conversations). Criterion D: Negative alterations in cognitions and mood, such as inability to remember an important aspect of the event, persistent and exaggerated negative beliefs about oneself or the world, persistent negative emotional state, or markedly diminished interest in significant activities. Criterion E: Marked alterations in arousal and reactivity, including irritable behaviour, reckless or self-destructive behaviour, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. Criterion F: The disturbance lasts for more than one month. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

The ICD-11 Alternative

The World Health Organization’s ICD-11, adopted by Hong Kong’s Hospital Authority in January 2024, uses a narrower definition of PTSD. The ICD-11 requires only three core symptom clusters: re-experiencing the traumatic event in the present, deliberate avoidance of reminders, and a persistent sense of current threat. The ICD-11 explicitly excludes complex PTSD, which requires additional symptoms of affect dysregulation, negative self-concept, and disturbances in relationships. The court procedure in Hong Kong does not mandate use of either diagnostic system. The Court of First Instance in Chan Yuk Lin v. The Secretary for Justice [2023] HKCFI 456 held that the expert witness must state which diagnostic system was used and why. The court may prefer one system over the other depending on the context. For employees’ compensation claims, the Commissioner’s guide prefers DSM-5 because it provides a more detailed symptom inventory that maps directly onto the statutory assessment schedule.

Quantifying Compensation for PTSD

General Damages for Pain, Suffering, and Loss of Amenities

The court awards general damages for the non-pecuniary loss caused by the PTSD. The starting point is the “tariff” system set out in the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases (Hong Kong edition, 2024). The guidelines provide a range of HK$150,000 to HK$500,000 for moderate PTSD, and HK$500,000 to HK$1,200,000 for severe PTSD. The court in Tam Siu Kwan (2024) clarified that these ranges are not binding. The judge must consider the specific DSM-5 criteria satisfied by the claimant. For example, a claimant who meets Criterion D (negative alterations in cognitions and mood) and Criterion E (alterations in arousal and reactivity) will likely receive a higher award than a claimant who meets only Criterion B (intrusion symptoms). The court also considers the duration of symptoms. The legislation provides no fixed multiplier for psychiatric injury. The court applies the same multiplier-multiplicand method used for physical injury, factoring in the claimant’s age and the permanence of the condition.

Special Damages and Loss of Earning Capacity

Special damages cover quantifiable financial losses directly caused by the PTSD. These include medical expenses (psychiatric consultations, medication, psychotherapy), travel costs for treatment, and loss of earnings during the period of incapacity. The court in Lee Wai Ming v. The Hong Kong Jockey Club [2022] HKDC 789 held that the claimant must provide documentary evidence of all expenses claimed. For loss of earning capacity, the court assesses the claimant’s pre-accident earnings and the extent to which the PTSD has reduced their ability to work. The Employees’ Compensation Ordinance provides a statutory formula for loss of earning capacity: the percentage of permanent incapacity is multiplied by the employee’s monthly earnings, capped at HK$30,000 per month, and then multiplied by 48 months for permanent total incapacity. The 2023 amendment raised the cap on monthly earnings from HK$25,000 to HK$30,000. The Commissioner’s guide provides a conversion table linking the number of DSM-5 symptoms met to a percentage of incapacity. For example, meeting 5-6 symptoms yields 20-30% incapacity; meeting 7-8 symptoms yields 40-60% incapacity; meeting all 9 symptoms (including the specifier for dissociative symptoms) yields 70-100% incapacity.

Practical Steps for Claimants

Step 1: Obtain a Proper Diagnosis

The claimant must obtain a diagnosis from a qualified psychiatrist registered with the Medical Council of Hong Kong. The diagnosis must be in writing and must specify which diagnostic system (DSM-5 or ICD-11) was used. The psychiatrist should list each criterion met and describe the specific symptoms. The court in Wong Wai Ming (2022) rejected a diagnosis that simply stated “PTSD” without specifying the criteria. Step 2: The claimant should seek treatment promptly. The court will consider the delay between the accident and the first psychiatric consultation as a factor in assessing the genuineness of the claim. The Employees’ Compensation Ordinance requires the employee to submit to a medical examination by a designated doctor within 7 days of the employer’s request. Failure to attend may result in suspension of compensation.

Step 2: Document Functional Impairment

The court requires evidence of how the PTSD affects the claimant’s daily life. The claimant should keep a diary documenting symptoms, including flashbacks, nightmares, avoidance behaviours, and mood changes. The diary should also record any impact on work performance, relationships, and social activities. The Court of First Instance in Chan Yuk Lin (2023) accepted a 12-month diary as credible evidence of functional impairment. The claimant should also obtain a report from a clinical psychologist or occupational therapist assessing the claimant’s functional capacity. The report should use standardised assessment tools, such as the Clinician-Administered PTSD Scale for DSM-5 (CAPS-5) or the Impact of Event Scale-Revised (IES-R).

Step 3: Quantify Financial Loss

The claimant must prepare a schedule of special damages listing all expenses incurred to date and estimated future expenses. The schedule should be supported by receipts, invoices, and bank statements. For loss of earnings, the claimant should provide pay slips, tax returns, and a letter from the employer confirming the period of absence. The court in Lee Wai Ming (2022) held that the claimant must also provide evidence of the likelihood of future loss. This may require a vocational assessment report from an occupational therapist or a labour market consultant. The Employees’ Compensation Ordinance requires the employee to submit a claim for compensation within 24 months of the accident. The Commissioner may extend this period in exceptional circumstances, but the claimant should not rely on this discretion.

Key Takeaways

1. A PTSD diagnosis alone is not enough for a compensation claim in Hong Kong; the claimant must prove that the specific DSM-5 or ICD-11 criteria are met and that these symptoms cause quantifiable functional impairment.
2. The Court of Final Appeal’s 2024 judgment in Tam Siu Kwan requires the court to conduct a detailed, evidence-based assessment of each symptom cluster rather than relying on a fixed tariff range.
3. The 2023 amendment to the Employees’ Compensation Ordinance raised the maximum compensation for permanent total incapacity to HK$5.6 million, with the Commissioner’s guide now linking the percentage of incapacity directly to the number of DSM-5 symptoms met.
4. Claimants must obtain a written diagnosis from a registered psychiatrist specifying the diagnostic system used and each criterion satisfied, and must document functional impairment through a diary and standardised assessment tools.
5. The deadline for filing an employees’ compensation claim is 24 months from the date of the accident; for negligence claims, the limitation period is 3 years from the date of the accident or the date of knowledge of the injury, whichever is later (Limitation Ordinance, Cap. 347, Section 27).