Hong Kong Ordinances

EMPLOYEES' COMPENSATION ORDINANCE - SECT 25

Remedies against both employer and third party

(Past version on 01/07/1997).
(Past version on 30/06/1997).

(1) Where the injury in respect of which compensation is payable was caused in
circumstances creating a legal liability in some person other than the
employer (in this section referred to as the third party) to pay damages to
the employee in respect thereof-

   (a)  the employee may both claim compensation under this Ordinance and take
        proceedings against the third party in the Court of First Instance or,
        subject to the provisions of the District Court Ordinance ( Cap 336)
        relating to the limits of jurisdiction, in the District Court to
        recover damages: (Amended 25 of 1998 s. 2) Provided that where any
        such proceedings are instituted the court in which the action is tried
        shall, in awarding damages, have regard to the amount which, by virtue
        of paragraph (b), has become or is likely to become payable to the
        employer by the third party; and

   (b)  the employer by whom compensation is payable, and any person who may
        be called upon to pay an indemnity under section 24 in the case of an
        employee employed by a sub-contractor, shall have a right of action
        against the third party for the recovery of any sum which he is
        obliged to pay as a result of the accident, whether by way of
        compensation or indemnity or by virtue of any agreement made with the
        employee prior to the accident, and may exercise such right either by
        joining in an action begun by the employee against the third party or
        by instituting separate proceedings: Provided that the amount
        recoverable under this paragraph shall not exceed the amount of
        damages, if any, which in the opinion of the court would have been
        awarded to the employee but for the provisions of this Ordinance.

(2) An employee shall, before instituting proceedings for damages under
subsection (1), in writing notify the employer of his intention to do so and
shall likewise notify the employer if he decides to abandon such proceedings
or to relinquish or settle his claim for damages, and shall in connection with
any such notification furnish such particulars as the employer may require.

(3) If an employee who has-

   (a)  failed to notify the employer of his intention to institute
        proceedings under subsection (1); or

   (b)  in connection with any such notification, failed to furnish such
        particulars as the employer may require, recovers damages against a
        third party in any such proceedings, then-

        (i)    where the amount of damages recovered is equal to or greater
               than the amount of compensation which would, but for this
               subsection, be payable, no compensation shall be payable; or

        (ii)   where the amount of damages recovered is less than the amount
               of compensation which would, but for this subsection, be
               payable, the amount of compensation payable shall be a sum
               equal to the difference between the amount of damages recovered
               and the amount of compensation which would, but for this
               subsection, be payable.

(4) In any proceedings to which subsection (3) applies the court may, where
any sum of compensation referred to in that subsection has already been paid,
make such order with respect to the repayment of such sum or any part thereof
as is necessary to give effect to that subsection.

(5) Notwithstanding anything to the contrary in any other enactment, where
written notice of intention to institute proceedings under subsection (1)(b)
has been given by an employer, or by any person who may be called upon to pay
an indemnity under section 24, to a third party within 12 months of the
receipt by the employer or such person of due notice of the accident
concerned, no such proceedings shall lapse, or be barred, under any enactment
relating to the limitation of actions, until after the expiry of a period of 3
months from the date upon which a claim for compensation in respect of such
accident has been-

   (a)  determined by certificate under section 16A; or

   (aa) settled by agreement under section 16CA; or (Added 64 of 1992 s. 6)

   (aaa) determined by a Certificate of Compensation Assessment for 
        Fatal Case or Review Certificate of Compensation Assessment for Fatal 
        Case; or (Added 52 of 2000 s. 14)

   (b)  (Repealed 36 of 1996 s. 19)

   (c)  finally determined by a court, as the case may be.

(6) Where notice is given to the employer under subsection (2) and the
provisions of section 24 apply, the employer shall give notice thereof to any
person who may be called upon to pay an indemnity under that section.
(Replaced 76 of 1982 s. 19)