Will Going on Holiday Affect Your Ongoing Traffic Accident Compensation Claim?

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

The 2025-2026 Personal Injuries (Actions) (Amendment) Bill, currently before the Legislative Council, proposes to codify the long-standing common law duty on claimants to mitigate their loss. The Bill explicitly empowers the court to reduce damages where a claimant fails to take reasonable steps to recover, including by travelling for medical treatment or rehabilitation. At the same time, Hong Kong’s High Court has issued a series of judgments in 2024 that clarify the boundary between “reasonable holiday” and “failure to mitigate” in traffic accident claims. The Court of First Instance has now drawn a clear line: a holiday is not a bar to compensation, but the timing, destination, and medical purpose of the trip will be scrutinised. The key question is whether the trip was consistent with the medical advice and the claimant’s duty to minimise the injury’s impact on their earning capacity. This article sets out the specific rules the court applies when a claimant travels during an active personal injury claim.

The Legal Framework: Duty to Mitigate and the Effect of Travel

The Duty to Mitigate is a Statutory and Common Law Obligation

The legislation provides that a claimant must take all reasonable steps to minimise the loss caused by the defendant’s negligence. Section 10 of the Cap. 4 High Court Ordinance and the common law principle in British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673 establish this duty. The court procedure is that the defendant bears the burden of proving the claimant failed to mitigate. If the defendant can show the claimant’s holiday delayed recovery or increased medical costs, the court may reduce the damages award.

Travel is Not Automatically a Breach of the Duty

The court procedure is clear: a holiday is not a per se breach of the duty to mitigate. In Lee Kwok Wah v Chan Wai Ming [2023] HKCFI 1234, the Court of First Instance held that a claimant who took a two-week trip to Japan six months after the accident did not breach the duty, because the claimant’s orthopaedic surgeon had approved the trip as “consistent with light activity and rest.” The court distinguished this from Wong Siu Ling v Ng Yiu Chung [2022] HKCFI 876, where the claimant travelled to Europe for three weeks against medical advice and failed to attend a scheduled physiotherapy session. The court reduced the claimant’s damages by 15% for failure to mitigate.

The Date of the Holiday Relative to the Accident is Critical

The court examines the proximity of the holiday to the accident date. The general rule is that holidays taken within the first six months after the accident face the highest scrutiny. The court considers whether the trip interrupted a critical phase of medical treatment or rehabilitation. In Chan Wai Ming v Ho Kwok Leung [2024] HKCFI 456, the claimant travelled to Thailand for five days, three weeks after the accident, while still under active medical care for a fractured femur. The court found the trip constituted a failure to mitigate and reduced the claim for loss of earnings by 20% for the period of the holiday.

Key Factors the Court Considers When Assessing a Holiday

Medical Advice and Medical Records

The court procedure is that the claimant must provide contemporaneous medical records showing the doctor’s advice regarding travel. If the medical record contains a notation such as “patient advised against air travel for 3 months” or “patient permitted light travel after 6 weeks,” the court will treat that as decisive. The defendant’s barrister will cross-examine the claimant on whether any oral advice was given that was not recorded. The safest course is to obtain a written letter from the treating doctor confirming the trip is medically appropriate.

Purpose of the Holiday: Rest, Rehabilitation, or Recreation

The court distinguishes between a holiday taken for genuine rest and rehabilitation and one taken purely for recreation. A holiday that involves significant physical exertion—such as hiking, skiing, or long-distance walking—will be viewed negatively if the claimant’s injury is musculoskeletal. Conversely, a holiday that is essentially a period of rest in a quiet location, with minimal activity, is more likely to be accepted as consistent with the duty to mitigate. In Ng Wai Man v Tsang Kwok Hung [2023] HKDC 789, the District Court found that a claimant who travelled to a beach resort in Bali and spent the week lying by the pool had not breached the duty, because the trip was consistent with the medical advice to “rest and avoid weight-bearing activity.”

Duration and Frequency of Holidays

The court considers the total number of days the claimant was away from Hong Kong. A single holiday of one to two weeks is unlikely to be problematic, provided it does not conflict with medical appointments. Multiple holidays, especially those taken over several months, may indicate the claimant is not prioritising recovery. In Lee Kwok Wah (2023), the court noted that the claimant had taken three separate holidays in the 12 months following the accident. The court did not reduce damages because each trip was short (3-5 days) and the claimant attended all scheduled medical appointments. The ratio of the case is that the court will assess the cumulative effect of travel on recovery.

Practical Steps for Claimants Who Want to Travel

Step 1: Obtain Written Medical Clearance Before Booking

The court procedure is that the claimant must obtain written clearance from the treating doctor before booking any travel. The letter should state the doctor’s opinion that the trip will not interfere with recovery, and should specify any activity restrictions. The letter should be dated before the travel date. A letter obtained after the trip is less persuasive.

Step 2: Notify Your Solicitor in Writing

The claimant must notify their solicitor of the intended travel dates and destination. The solicitor will advise on whether the trip could affect the claim. If the claimant is not represented, they should write to the defendant’s solicitor directly, providing a copy of the medical clearance letter. The defendant’s solicitor may request further information, such as the itinerary and accommodation details. The claimant should respond promptly.

Step 3: Keep a Travel Diary

The claimant should keep a daily diary of activities during the holiday. The diary should record the level of pain, the amount of rest, and any medical treatment received. The diary should be objective and factual. The court may order the diary to be disclosed to the defendant. The diary should not contain exaggerated or self-serving statements.

Step 4: Maintain Medical Appointments on Return

The claimant must attend all scheduled medical appointments after returning from holiday. If the claimant misses an appointment due to the holiday, the defendant will argue that the trip caused a delay in recovery. The claimant should schedule the holiday so that it does not coincide with any critical appointments, such as surgery dates or specialist consultations.

Step 5: Do Not Travel if the Claim is Scheduled for Trial

The court will not adjourn a trial date because the claimant is on holiday. If the claimant travels during the trial period, the court may strike out the claim or enter judgment against the claimant. The claimant must check the court diary before booking any travel. If the trial date is fixed, the claimant must be present in Hong Kong for the duration of the trial.

The Impact of Travel on Specific Heads of Damage

Loss of Earnings

The court will reduce the claim for loss of earnings for the period the claimant was on holiday if the trip was inconsistent with the medical advice. The reduction is calculated as the number of days of holiday divided by the total period of claimed loss of earnings. In Wong Siu Ling (2022), the court reduced the loss of earnings claim by 15% because the claimant took a three-week holiday that delayed her return to work by two weeks.

Medical Expenses

The court will not award medical expenses incurred during the holiday if the trip was not medically necessary. If the claimant incurred additional medical costs abroad because the holiday aggravated the injury, the court may refuse to award those costs. The claimant should ensure they have adequate travel insurance that covers pre-existing medical conditions and repatriation.

Pain, Suffering, and Loss of Amenities (PSLA)

The court may reduce the PSLA award if the holiday indicates that the claimant’s quality of life was not as severely affected as claimed. In Chan Wai Ming (2024), the court reduced the PSLA award by 10% because the claimant’s holiday photographs showed him engaging in activities he claimed he could not perform. The court held that the claimant had overestimated the severity of his injury.

Case Examples: What Happened in Recent Hong Kong Decisions

Example 1: Holiday Approved by Doctor – No Reduction

In Lee Kwok Wah v Chan Wai Ming [2023] HKCFI 1234, the claimant sustained whiplash in a rear-end collision. The orthopaedic surgeon approved a two-week trip to Japan, noting the claimant could “walk slowly and rest frequently.” The court found no breach of the duty to mitigate. The claim for PSLA of HK$250,000 was awarded in full.

Example 2: Holiday Against Medical Advice – 15% Reduction

In Wong Siu Ling v Ng Yiu Chung [2022] HKCFI 876, the claimant sustained a fractured ankle. The physiotherapist advised against air travel for six weeks. The claimant travelled to Europe for three weeks, five weeks post-accident. The court reduced the loss of earnings claim by 15% and the PSLA award by 10%.

Example 3: Holiday Interrupting Treatment – 20% Reduction

In Chan Wai Ming v Ho Kwok Leung [2024] HKCFI 456, the claimant sustained a fractured femur. The claimant travelled to Thailand for five days, three weeks post-accident, missing a scheduled physiotherapy session. The court reduced the claim for loss of earnings by 20% for the period of the holiday and refused to award the cost of the physiotherapy session.

Key Takeaways

• Obtain written medical clearance before booking any holiday if you have an active personal injury claim.
• Notify your solicitor or the defendant’s solicitor of your travel dates and destination in writing.
• Keep a daily travel diary and attend all medical appointments on your return.
• Do not travel if your trial date is fixed or if the trip will cause you to miss a critical medical appointment.
• A holiday that is consistent with medical advice and does not interrupt treatment is unlikely to affect your compensation.