1953-HKRS29-8-20_Part03 — Page 26

(36 of 1051).

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of the employment both independently of and also under this Ordinance, and shall not be liable to any proceedings independ- ently of this Ordinance, except in case of such personal negligence or wilful act as aforesaid.

(2) If, within the time limited for taking proceedings under this Ordinance by subsection (1) of section 13, an action is brought to recover damages independently of this Ordinance for injury caused by an accident, and it is determined in such action or on appeal that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay com- pensation under the provisions of this Ordinance, the action shall be dismissed; but the court in which the action is tried, or, if the determination is the determination (on an appeal by either party) by an appellate tribunal, that tribunal, shall, if the plaintiff so choose, proceed to assess such compensation, but may deduct from such compensation all or part of the costs, which, in its judgment, have been caused by the plaintiff bringing the action instead of proceeding under this Ordinance. In any proceeding under this subsection, when the Court or appellate tribunal assesses the compensation, it shall give a certificate of the com- pensation it has awarded and the directions it has given as to the deduction of costs, and such certificate shall have the force and effect of an order of the Court under this Ordinance :

Provided that an appellate tribunal may, instead of itself assessing such compensation, remit the case to the Court for the assessment of the compensation, and in such case may order the Court to deduct from the amount of compensation assessed by it all or part of such costs as aforesaid.

(3) Where, within the time limited for taking proceedings under this Ordinance by subsection (1) of section 13, an pction is brought to recover damages independently of this Ordinance in respect of an injury giving rise to a claim for compensation under This Ordinance, and it is determined in that action that-

(a) damages are recoverable independently of this Ordinance subject to such reduction as is mentioned in subsection (r) of section 4 of the Law Reform (Miscellaneous Provisions) Ordinance, 1951; and

(b) the employer would have been liable to pay compensation

under this Ordinance,

subsection (2) shall apply in all respects as if the action had been dismissed, and, if the plaintiff chooses to have compensation assessed and awarded in accordance with the said subsection (2), no damages shall be recoverable in the said action.

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(36 of

26. Where a workman or his personal representative or Limitation. dependant has recovered compensation under this Ordinance in on right of

inderanity respect of an injury caused under circumstances which would give against

third party. a right to recover reduced damages in respect thereof by virtue of section 4 of the Law Reform (Miscellaneous Provisions) 1951). Ordinance, 1951, from some person other than the employer (hereinafter referred to as "the third party'), any right conferred by section 24 of this Ordinance on the person by whom the com- pensation was paid, or on any person called on To pay an Indemnity under section 23 of this Ordinance, to be indemnified by the third party shall be limited to a right to be indemnified in respect of such part only of the compensation or indemnity paid or payable as bears to the total compensation or indemnity so paid or payable the same proportion as the said reduced damages bear to the total damages which would have been recoverable if the workman had not been at fault.

af

of

27. (1) Where any employer has entered into a contract Provision with any insurers in respect of any liability under this Ordinance as to cases Lo any workman, then, in the event of the employer becoming bankruptcy bankrupt, or making a composition or scheme of arrangement employer. with his creditors, or, if the employer is a company, in the event of the company having commenced to be wound up or a receiver or manager of the company's business or undertaking having been duly appointed, or possession having been taken, by or on behalf of the holders of debentures secured by a floating charge. of any property comprised in or subject to the charge, the rights of the employer against the insurers as respects that liability shall, notwithstanding anything contained in any laws relating to bankruptcy and the winding-up of companies for the time being in force, be transferred to and vest in the workman, and upon any such transfer the insurers shall have the satne rights and remedies and be subject to the same liabilities as if they were the employer:

Provided that the insurers shall not be under any greater liability to the workman than they would have been under to the employer.

(2) If the liability of the insurers to the workman is less than the liability of the employer to the workman, the workman may prove for the balance in the bankruptcy or liquidation, or, as the case may be, he may recover the balance from the receiver or manager.