Hong Kong Ordinances

LAW AMENDMENT AND REFORM (CONSOLIDATION) ORDINANCE - SECT 21

Apportionment of liability in case of contributory negligence

(1) Where any person suffers damage as the result partly of his own fault and
partly of the fault of any other person or persons, a claim in respect of that
damage shall not be defeated by reason of the fault of the person suffering
the damage, but the damages recoverable in respect thereof shall be reduced to
such extent as the court thinks just and equitable having regard to the
claimant's share in the responsibility for the damage: (Amended L.N. 337 of
1989) Provided that-

   (a)  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 not
        exceed the maximum limit so applicable.

(2) Where damages are recoverable by any person by virtue of subsection (1)
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 at fault.

(3) The Civil Liability (Contribution) Ordinance ( Cap 377) shall apply in any
case where 2 or more persons are liable or would, if they had all been sued,
be liable by virtue of subsection (1) in respect of the damage suffered by any
person. (Amended 77 of 1984 s. 10)

(4) Where any person dies as the result partly of his own fault and partly of
the fault of any other person or persons, and accordingly if an action were
brought for the benefit of the estate under section 20 the damages recoverable
would be reduced under subsection (1), any damages recoverable in an action
under the Fatal Accidents Ordinance ( Cap 22) shall be reduced to a
proportionate extent. (Amended 40 of 1986 s. 4)

(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. (Added 40 of 1986 s. 4)

(5) Where, in any case to which subsection (1) applies, one of the persons at
fault avoids liability to any other such person or his personal representative
by pleading any enactment limiting the time within which proceedings may be
taken, he shall not be entitled to recover any damages from that other person
or representative by virtue of the said subsection. (Amended 77 of 1984 s. 10)

(6) Where any case to which subsection (1) applies is tried with a jury, the
jury shall determine the total damages which would have been recoverable if
the claimant had not been at fault and the extent to which those damages are
to be reduced.

(7) Article 21 of the Convention contained in the First Schedule to the
Carriage by Air Act 1932 (1932 c. 36 U.K.) (which empowers a court to
exonerate wholly or partly a carrier who proves that the damage was caused by
or contributed to by the negligence of the injured person) shall in its
application to the Colony have effect subject to the provisions of this
section.

(8) This section shall not apply to any claim to which section 1 of the
Maritime Conventions Act 1911 (1911 c. 57 U.K.), applies and that Act shall
have effect as if this section and sections 20 and 22 had not been enacted.
[cf. 1945 c. 28 s. 3 U.K.]

(9) This section shall not apply to any case where the acts or omissions
giving rise to the claim occurred before 26 October 1951. [cf. 1945 c. 28 s. 3
U.K.]

(10) In this section-

"court" (法院) means, in relation to any claim, the court or arbitrator by
or before whom the claim falls to be determined;

"damage" (損害) includes loss of life and personal injury;

"dependant" (受養人) means any person for whose benefit an action could be
brought under the Fatal Accidents Ordinance ( Cap 22);

"fault" (過失) means negligence, breach of statutory duty or other act or
omission which gives rise to a liability in tort or would, apart from this
section, give rise to the defence of contributory negligence. [cf. 1945 c. 28
s. 4 U.K.]

(36 of 1951 s. 4 incorporated) [cf. 1945 c. 28 s. 1 U.K.]

"court" (法院)

"damage" (損害)

"dependant" (受養人)

"fault" (過失)