Amendment of section 21.
4.
Section 21 of the principal Ordinance is amended-
Amendments to
Supreme Court
Ordinance and Bankruptcy Ordinance.
(Cap. 4.)
(Cap. 4, sub. leg.)
(Cap. 6.)
(a) in subsection (4) by deleting "brought for the benefit of the dependants of
that person"; and
(b) by inserting after subsection (4) the following-
5.
"(4A) Where an action is brought under section 20C for the loss of the society of another in circumstances where any damages recoverable by that other in proceedings brought by him would be reduced under subsection (1) of this section, any damages awarded for such loss shall be reduced to a proportionate extent.”.
(1) The Supreme Court Ordinance is amended by adding after section 56 the following--
"Orders for
provisional
damages for
personal injuries. [cf. 1982
c. 53. s. 6.]
56A. (1) This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deteriora- tion in his physical or mental condition.
(2) Subject to subsection (4), as regards any action for damages to which this section applies in which a judgment is given in the High Court, provision may be made by rules of court for enabling the Court, in such circumstances as may be prescribed, to award the injured person-
(a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and
(b) further damages at a future date if he develops the disease or
suffers the deterioration.
(3) Any rules made by virtue of this section may include such incidental, supplementary and consequential provisions as the rule- making authority may consider necessary or expedient, and may provide for the injured person to elect whether or not to accept an award of damages assessed in accordance with such rules.
(4) Nothing in this section shall be construed—
(a) as affecting the exercise of any power relating to costs, including any power to make rules of court relating to costs;
or
(b) as prejudicing any duty of the Court under any enactment or rule of law to reduce or limit the total damages which would have been recoverable apart from any such duty.”.
(2) The Rules of the Supreme Court are amended, in rule 10(3)(c) of Order 29 and in rule 11(2) of Order 80, by deleting in each case "6" and substituting the following-
**5(4)".
(3) Section 34(3) of the Bankruptcy Ordinance is amended by inserting after "obligation incurred before the date of the receiving order," the following-
(Cap. 4.)
"including a liability to pay further damages as provided for in section 56A(2)(b) of the Supreme Court Ordinance (following an award of provisional damages), ̈.
Explanatory Memorandum
This Bill, in conjunction with the proposed new Fatal Accidents Bill 1986, implements certain recommendations made by the Law Reform Commission in its report entitled "Damages for Personal Injuries and Death".
2. Clause 2 adds to existing limitations that are placed by section 20 of the Law Amendment and Reform (Consolidation) Ordinance on the claims that are transmitted for the benefit of a deceased's estate on the deceased's death. In particular, new paragraph (a)(ii) of section 20(2) of the Ordinance (in clause 2(b)) seeks to ensure, in the light of Adsett v. West [1983] 3 WLR 437, that the estate may not recover damages for the loss of the prospect of an inheritance; and new paragraph (a)(iv) restricts damages for loss of income that would have accrued but for death to damages for loss of savings.
3. Clause 3 introduces three new sections into the Ordinance. New section 20A abolishes the action for damages for loss of expectation of life, as was done in England by section 1 of the Administration of Justice Act 1982. New section 20B abolishes the existing actions for loss of society or service, as was done by section 2 of that Act, but section 20C creates in Hong Kong new actions for such losses, as recommended by the Commission. Clause 4 makes consequential amendments to section 21 of the Ordinance.
4. A new section 56A is added to the Supreme Court Ordinance (Cap. 4) by clause 5 of the Bill. This section provides for awards of provisional damages to be permitted by rules of court, and mostly follows new section 32A of the Supreme Court Act 1981 in England, as enacted in section 6 of the Administration of Justice Act 1982. Clause 5(3) enacts an ancillary provision, as recommended by the Commission, to enable any further claim of a plaintiff who has been awarded provisional damages to be provable as a debt due to the plaintiff, in the event of the defendant's later bankruptcy.
5. The Bill has no Public Service staffing or financial implications.
一九八六年法律修訂及改革(綜合)條例草案
摘要說明
本條例草案,連同擬議新訂一九八六年意外死亡條例草案,把香港 法律改革委員會在其以「個人傷亡賠償問題法律研究」為題的報告書內所提若 干項建議付諸實施。
法律修訂及改革(綜合)條例第二十條對於一名死者生前所提出的 索償要求,可予轉撥為死者遺產利益一事,原已訂有若干限制,本草案第二條 在這些原有限制之上加訂進一步限制。鑑於一九八三年艾特 (Adsett) 對韋斯 特(West)一案(英國《每週法律報告》第三册第437頁)的審判結果,法律修 訂及改革(綜合)條例第二十條第(2)款內載新訂(a)段第(ii)節(即本條例草案第 二條(b)段)因而作出特別規定,以確保死者遺產不得因失去一項繼承展望而追 討賠償;另就賠償非因身故即可獲得的入息方面,新訂(a)段第 (iv)節紙把該 類賠償局限於對儲蓄方面所蒙受的損失適用。
草案第三條在原有條例內增訂三條新條款。新訂第二十A條參照英 國在其一九八二年法律執行法第一條所制定的條款,廢除因估計的壽命有所縮 短而提出的索償訴訟;新訂第二十B條亦參照該一九八二年法律執行法第二條
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