Hong Kong Ordinances

EMPLOYEES' COMPENSATION ORDINANCE - SECT 26

Remedies independently of Ordinance against employer

(Past version on 09/06/2000).
(Past version on 01/07/1997).
(Past version on 30/06/1997).

(1) Where any injury is caused to an employee by the negligence, breach of
statutory duty or other wrongful act or omission of the employer, or of any
person for whose act or default the employer is responsible, nothing in this
Ordinance shall limit or in any way affect any civil liability of the employer
independently of this Ordinance: (Amended 32 of 2000 s. 48) Provided that any
damages awarded against an employer in an action at common law or under any
enactment in respect of any such negligence, breach of statutory duty,
wrongful act or omission, shall be reduced by the value, as decided by the
Court of First Instance or the District Court, as the case may be, of any
compensation which has been paid or is payable under the provisions of this
Ordinance in respect of the injury sustained by the employee. (Replaced 55 of
1969 s. 20. Amended 44 of 1980 s. 15; 76 of 1982 s. 20; 25 of 1998 s. 2; 52 of
2000 s. 15)

(2) If, within the time limited for taking proceedings under this Ordinance by
section 14(1), 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 compensation
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 (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 a court or appellate
tribunal assesses the compensation, it shall give a certificate of the
compensation 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 District Court under this Ordinance: Provided that an appellate
tribunal may, instead of itself assessing such compensation, remit the case to
the District Court for the assessment of the compensation, and in such case
may order the District Court to deduct from the amount of compensation
assessed by it all or part of such costs as aforesaid. (Amended 76 of 1982 s.
20)

(3) Where, within the time limited for taking proceedings under this Ordinance
by section 14(1), an action 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 section 21(1) of the Law Amendment 
        and Reform (Consolidation) Ordinance ( Cap 23); 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.

(4) Without prejudice to section 21(3), where a court or appellate tribunal
assesses compensation in accordance with subsection (2) it may include in the
sum awarded interest at such rate as it thinks fit on the whole or any part of
such sum for the whole or any part of the period between the date of the
accident and the date of the certificate given under that subsection. (Added
76 of 1982 s. 20) [cf. 1925 c. 84 s. 29 U.K.]