1965-HKRS29-8-32_Part02 — Page 8

Application

of ss. 27 & 28

to actions

after death of injured person. 1963, c. 47, 4. 3 (36 of 1951).

(Cap. 22).

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(b) to fulfil the requirements of subsection (3) of section 27 in

relation to that cause of action.

(3) Where such an application is made after the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates it, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient-

(a) to establish that cause of action, apart from any defence under

subsection (1) of section 4; and

(5) to full the requirements of subsection (3) of section 27 in rela-

tion to that cause of action:

and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as (apart from section 27) to afford a defence under subsection (1) of section 4.

(4) In this section, "relevant action". in relation to an application for the leave of the court, means any action in connexion with which the leave sought by the application is required.

29. (1) In relation to any action to which section 27 applies, being an action in respect of one or more causes of action surviving for the benefit of the estate of a deceased person by virtue of section 2 of the Law Reform (Miscellaneous Provisions) Ordinance 1951, subsections (1), (3) and (5) of section 27, and section 28, of this Ordinance shall have effect subject to the provisions of subsections (4) and (5) of this section.

(2) Subsections (1), (3) and (5) of section 27, and section 28, of this Ordinance shall have effect, subject to the provisions of subsections (4) to (6) of this section, in relation to an action brought by virtue of the Fatal Accidents Ordinance for damages in respect of a person's death, as they have effect in relation to an action to which section 27 of this Ordinance applies.

(3) In subsections (4), (5) and (6) of this section, and in sections 27 and 28 of this Ordinance as modified by those provisions, "the deceased” means the person referred to in subsection (1) or (2) of this section, as the case may be.

(4) Subsection (1) of section 27 shall not have effect in relation to any action falling within subsection (1) or (2) of this section unless the action is brought before the end of the period of twelve months from the date on which the deceased died.

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(5) For the purpose of the application of subsection (3) of sec- tion 27 to an action falling within subsection (1) or (2) of this section- (a) any reference in the said subsection (3) to the plaintiff shall be

construed as a reference to the deceased; and

(6) the requirements of that subsection shall be taken to be fulfilled in relation to a cause of action if either the matters specified in that subsection (as modified by paragraph (a) of this sub- section) are proved or it is proved that the material facts re- lating to that cause of action were or included facts of a decisiva character which at all times until his death were outside the knowledge (actual or constructive) of the deceased;

and any reference to the requirements of the said subsection (3) shall, in relation to an action falling within subsection (1) or (2) of this section, bo construed as a reference to the requirements of the said subsection (3) as modified by this subsection.

(6) In the application of sections 27 to 33 to an action brought by virtue of the Fatal Accidents Ordinance—

(a) any reference to a cause of action to which an action relates shall be construed as a reference to a cause of action în respect of which it is claimed that the deceased could (but for his death) bave maintained an action and recovered damages; and

(b) any reference to establishing a cause of action shall be con- strued as a reference to establishing that the deceased could (but for his death) have maintained an action and recovered damages in respect thereof.

[Cap. 22).

30. In sections 27 and 29 any reference to material facts relating Meaning of to a cause of action is a reference to any one or more of the following, that is to say-

**terial facts relating (O A CAUNC of action.".

(2) the fact that personal injuries resulted from the negligence. 1963, 47,

nuisance or breach of duty constituting that cause of action;

(5) the nature of extent of the personal injuries resulting from

that negligence, nuisance or breach of duty;

(c) the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable,

7(3).

31. For the purposes of sections 27 and 29 any of the material facts Meaning of relating to a cause of action shall be taken, at any particular time, to "facts of a

decisive have been facts of a decisive character if they were facts which a reason- character". able person, knowing those facts and having obtained appropriate advice. 1963, c. 47, within the meaning of section 33 with respect to them, would have s.7(4). regarded at that time as determining, în relation to that cause of action,