2
3
Right of action
for wrongful act
causing death.
[cf. 1982
c. 53, s. 3.]
Bereavement.
[cf. 1982
c. 53, s. 3.]
(Cap. 23.)
Persons entitled to
bring the action.
[cf. 1982
c. 53, s. 3.]
(b) any relationship by affinity shall be treated as relationship by consang any relationship of the half-blood as a relationship of the whole bloo the stepchild of any person as his child; and
(c) an illegitimate person shall be treated as the legitimate child of his mother
and reputed father.
3. (1) If death is caused to any person ("the deceased") by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled him to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the deceased.
(2) Subject to section 4(2), every such action shall be for the benefit of the dependants of the deceased.
4. (1) An action under this Ordinance may consist of or include a claim for damages for bereavement unless, by reason of the act, neglect or default referred to in section 3(1), any person has recovered, by action or otherwise, a sum in respect of loss of the deceased's society under section 20C(1) of the Law Amendment and Reform (Consolidation) Ordinance.
(2) A claim for damages for bereavement shall only be for the benefit of such of the following persons as survive the deceased for not less than 30 days—
(a) the wife or husband of the deceased, unless they had been living apart for a continuous period of at least 2 years immediately preceding the death of the deceased; or
(b) where there is no spouse by or for whom a claim can be made under
paragraph (a), the children of the deceased; or
(c) where there is no person by or for whom a claim can be made under paragraph (a) or (b), the parents of the deceased or (if he was illegitimate) his mother; or
(d) where there is no person by or for whom a claim can be made under paragraph (a), (b) or (c) but the deceased was at the date of his death a minor, any person who during any marriage to which that person was a party treated the deceased as a son or daughter of the family in relation to that marriage; or
(e) where there is no person by or for whom a claim can be made under
paragraph (a), (b), (c) or (d), any brother or sister of the deceased.
(3) Subject to subsection (4), the sum to be awarded as damages under this section shall be $40,000.
(4) Where there is a claim for damages under this section for the benefit of 2 or more persons, the sum awarded shall be divided equally between them (subject to any deduction falling to be made in respect of costs not recovered from the defendant).
(5) The Legislative Council may by resolution amend subsection (3) by varying the sum specified therein.
5. (1) An action under this Ordinance shall be brought by and in the name of the executor or administrator of the deceased.
(2) If—
(a) there is no executor or administrator of the deceased; or
(b) no action is brought within 6 months after the death by and in the name of
an executor or administrator of the deceased,
the action may be brought by and in the name of all or any of the persons for whose benefit an executor or administrator could have brought it.
(3) Not more than one action shall lie for and in respect of the same subject-matter of complaint.
(4) The plaintiff in the action shall be required to deliver to the defendant or his tor full particulars of the persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.
6. (1) In the action, such damages, other than damages for bereavement, may Assessment of be awarded to dependants in such proportions as reflect their respective injuries as a damages. result of the death.
[cf. 1982
(2) Where damages are awarded under subsection (1), any costs not recovered from the defendant shall be deducted from those damages and thereafter those damages shall be divided among the dependants in such proportions as has been decided under that subsection.
c. 53, s. 3.]
(3) In an action under this Ordinance, or under the Carriage by Air (Overseas (App. III. Territories) Order 1967, where there fall to be assessed damages payable to a widow P. CG.) in respect of the death of her husband there shall not be taken into account the re-marriage of the widow or her prospects of re-marriage.
(4) In an action under this Ordinance where there fall to be assessed damages payable to a person who is a dependant within the meaning of paragraph (b) of the definition of that term in section 2, in respect of the death of the person with whom the dependant was living as husband or wife, there shall be taken into account (together with any other matter that appears to the court to be relevant to the action) the fact that the dependant had no enforceable right to financial support by the deceased as a result of their living together.
(5) If the dependants have incurred funeral expenses in respect of the deceased, damages may be awarded in respect of those expenses.
(6) Money paid into court in satisfaction of a cause of action under this Ordinance may be in one sum without specifying any person's share.
7. In assessing damages in respect of a person's death in an action under this Assessment Ordinance or under the Carriage by Air (Overseas Territories) Order 1967, benefits of damages: which have accrued or will or may accrue to any person from his estate or otherwise disregard of as a result of his death shall be disregarded.
8. The Fatal Accidents Ordinance is repealed.
Explanatory Memorandum
This Bill implements certain recommendations of the Law Reform Com- mission, in conjunction with the Law Amendment and Reform (Consolidation) (Amendment) Bill 1986. The recommendations were included in a report published under the title "Damages for Personal Injuries and Death".
2.
The Bill repeals and replaces the current Fatal Accidents Ordinance (Cap. 22) although much of the substance is unchanged. With the exception of the following matters, and save for necessary minor local modifications, the Bill closely follows the wording of the English Fatal Accidents Act 1976, as extensively substituted by the Administration of Justice Act 1982. This is as recommended by the Commission, which preferred the style of the English Act. The main differences now are that----
(a) definitions are brought together, in accordance with legislative practice in Hong Kong, into clause 2 of the Bill and are drawn to reflect local circumstances and to implement some of the recommendations of the Commission; in particular, the definition of “dependant” departs exten- sively from that in the English Act;
benefits. [cf. 1982
c. 53, s. 3.]
(App. III. p. CG.)
Repeal. (Cap. 22.)