1951-HKRS28-8-18_Part03 — Page 19

Ordinance

No. 3 of 1889.

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person—

(a) shall not include any exemplary damages;

(b) in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry; (c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

(a) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless either-

(a) proceedings against him in respect of that cause of action

were pending at the date of his death; or

(b) the cause of action arose not earlier than six months before his death and proceedings are taken, in respect thereof not later than six months after his personal representative took out representation.

(4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be decmed, for the purposes of this Ordinance, to have been subsist- ing against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

(5) The rights conferred by this Ordinance for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accidents Ordinance, 1889, and so much of this Ordinance as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Ordinance as it applies in relation to other causes of action not expressly exempted from the operation of subsection (1) of this section.

(6) In the event of the insolvency of an estate against which proceedings are maintainable by virtue of this section, any liability in respect of the cause of action in respect of which the

proceedings are maintainable shall be deemed to be a debt prov- able in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract, promise or breach of trust.

3.

In assessing damages in any action brought under the Assessment Fatal Accidents Ordinance, 1889-

(a) there shall not be taken into account any sum paid or payable on the death of the deceased under any contract of assurance or insurance;

(b) the funeral expenses of the deceased person, if such expenses have been incurred by the parties for whose benefit the action is brought shall be taken into account.

of damages. Ordinance No. 3 of 1899

& Edw. 7, c. 7. a. 1.

ment of

con-

(1) Where any person suffers damage as the result Apportion. partly of his own fault and partly of the fault of any other person liability or persons, a claim in respect of that damage shall not be defeated in case of by reason of the fault of the person suffering the damage, but the tributory damages recoverable in respect thereof shall be reduced to such negligence. extent as the court thinks just and equitable having regard to the Geo. 6. daimant's share in the responsibility for the damage:

Provided that

(2) this subsection shall not operate to defeat any defence

arising under a contract;

(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall nor exceed the maximum limit so applicable.

(2) Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been

fault.

(3) Section z of the Tortfeasors Ordinance, 1936, (which relates to proceedings against, and contribution between, joint and Several torffensors), shall apply in any case where two or more persons are liable or would, if they had all been sued, be liable by virtue of subsection (1) of this section in respect of the damage suffered by any person.

# & 9

2. 28. a. 1 s. 1 and

9. 4.

Ordinance No. 11 of 1936,