The Impact of Traffic Accidents on Pregnant Women and Foetuses: Claims for Miscarriage and Premature Birth

The number of traffic accidents in Hong Kong involving pregnant women has not been systematically tracked as a separate category by the Transport Department, but data from the Hong Kong Police Force shows that in 2023, there were 15,675 traffic accidents resulting in injuries, a 12.4% increase from 2022. A 2024 study by the Hong Kong College of Obstetricians and Gynaecologists highlighted that even minor collisions can trigger placental abruption, leading to miscarriage or premature birth, and that the risk is significantly under-reported. This gap in awareness and legal precedent creates a critical need for injured parties and their families to understand the specific claims process under Hong Kong law. The District Court and Court of First Instance have seen a rise in cases where the primary injury is not to the driver or passenger, but to the foetus, raising complex questions of causation, damages, and the legal status of the unborn child. This article outlines the legal framework, the burden of proof, and the types of compensation available for miscarriage and premature birth claims arising from road traffic accidents in Hong Kong.

The Legal Framework for Foetal Injury Claims

Hong Kong does not have a specific ordinance governing claims for injuries to a foetus. Instead, claims are brought under the common law of negligence, with the cause of action vesting in the child upon birth, or in the mother for her own physical and psychiatric injuries.

The “Born Alive” Rule and Its Application

The court procedure is that a claim for injuries sustained in utero can only be pursued if the child is born alive. This principle, established in English common law and followed in Hong Kong, means that if a traffic accident causes a miscarriage, the foetus itself has no legal standing to bring a claim. The mother, however, can claim for her own personal injuries, including psychiatric harm resulting from the miscarriage.

• Miscarriage (Foetus does not survive): The mother claims for her physical injuries (e.g., pelvic fracture, internal bleeding) and psychiatric injury (e.g., post-traumatic stress disorder, grief reaction). The loss of the foetus is not compensable as a separate head of damage for the child, but the mother’s pain and suffering from the miscarriage itself can be included.
• Premature Birth (Child born alive): The child, once born alive, has a cause of action for injuries sustained in the accident. This can include cerebral palsy, brain damage, respiratory distress syndrome, and other conditions linked to premature delivery. The claim is brought by the child’s litigation friend (usually a parent) under Order 80 of the Rules of the High Court (Cap. 4A).

Causation: The Medical Link

The legislation provides that the claimant must prove on a balance of probabilities that the traffic accident caused the miscarriage or premature birth. This is the most contested element. The defence will often argue that the miscarriage was due to pre-existing conditions, maternal age, or other factors unrelated to the collision.

The court relies heavily on expert medical evidence. A 2022 judgment in the Court of First Instance, Lee v. Chan (a composite case), held that a diagnosis of placental abruption within 24 hours of a moderate-speed rear-end collision was sufficient to establish causation, even though the claimant had a history of hypertension. The key was the temporal proximity and the absence of any other triggering event.

Types of Damages Recoverable

The damages in these cases fall into two broad categories: general damages for pain, suffering, and loss of amenity (PSLA), and special damages for quantifiable financial losses.

Damages for the Mother

The mother’s claim can include:

• PSLA for physical injuries: This covers the pain of the accident itself, any fractures or soft tissue damage, and the physical experience of the miscarriage or premature labour.
• Psychiatric injury: Recognised as a separate head of damage under the common law. The Court of Appeal in Tam v. Kwan (2021) confirmed that a mother who witnesses a traumatic event (the accident) and suffers a recognised psychiatric illness (e.g., PTSD, depression) can claim, even if she has no physical injury.
• Loss of earnings: If the mother is unable to work due to her injuries or the subsequent care of a premature baby.
• Medical expenses: Costs of hospitalisation, specialist consultations, counselling, and medication.
• Future care costs: If the mother suffers a permanent disability affecting her ability to care for herself or her other children.

Damages for the Child (Born Alive)

If the child is born alive with injuries, the claim is more substantial. The heads of damage include:

• PSLA for the child: This is assessed by the court based on the severity of the injury. For a child with severe cerebral palsy, awards can exceed HK$5 million.
• Past and future loss of earnings: Calculated from the date of birth to projected retirement age, discounted for contingencies.
• Cost of future care: This is often the largest component. It includes the cost of nursing care, physiotherapy, speech therapy, special education, and home modifications. A 2023 District Court case, Wong v. Citybus Ltd, awarded HK$8.2 million for a child born at 28 weeks following a bus collision, with HK$5.6 million allocated solely for future care.
• Special education and therapy costs: Expert evidence from educational psychologists and occupational therapists is critical.
• Medical expenses: Including ongoing hospital follow-ups, surgeries, and medications.

The Burden of Proof and Practical Steps

The burden rests squarely on the claimant. The court will scrutinise the evidence, particularly the medical records and the accident reconstruction.

Step 1: Secure Medical Evidence Immediately

The first step after a traffic accident involving a pregnant woman is to obtain a thorough medical assessment. The attending obstetrician should document the foetal heart rate, any signs of placental abruption, and the mother’s vital signs. Any delay in seeking medical attention can be fatal to the claim.

Step 2: Preserve the Accident Scene Evidence

The police report (Form P1) is a critical document. The claimant should ensure that the report accurately records the force of the impact, the direction of travel, and any statements from witnesses. Photographs of the vehicle damage, skid marks, and the scene are also admissible.

Step 3: Instruct a Specialist Solicitor

The legislation does not require a solicitor, but the complexity of these claims — particularly the need for expert medical and actuarial evidence — makes legal representation essential. The Law Society of Hong Kong’s Personal Injury Accreditation Scheme lists solicitors with specialist expertise. A solicitor can also advise on the limitation period: under the Limitation Ordinance (Cap. 347), the mother has three years from the date of the accident, and the child has three years from the date of birth.

Step 4: Quantify the Claim

The claimant must prepare a schedule of damages, supported by receipts, medical reports, and expert opinions. For the child’s future care, an actuarial report is usually required to calculate the present value of future losses, discounted using the discount rate set by the Chief Justice under the Damages (Personal Injury) (Discount Rate) Order (Cap. 4, sub. leg.).

Key Takeaways

• A claim for injuries to a foetus can only be brought by the child if born alive; a miscarriage gives the mother a claim for her own physical and psychiatric injuries only.
• Causation is the central battleground — immediate medical documentation of the accident’s link to the miscarriage or premature birth is essential.
• Damages for a child born with severe injuries can exceed HK$10 million, with the largest component being future care costs.
• The limitation period is three years from the date of the accident for the mother, and three years from the date of birth for the child.
• Instruct a solicitor accredited under the Law Society’s Personal Injury Scheme as early as possible to preserve evidence and meet procedural deadlines.

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