LAW AMENDMENT AND REFORM (CONSOLIDATION) ORDINANCE

LAW AMENDMENT AND REFORM (CONSOLIDATION) ORDINANCE

LAWS OF HONG KONG

LAW AMENDMENT AND REFORM
(CONSOLIDATION) ORDINANCE

CHAPTER 23





CHAPTER 23

LAW AMENDMENT AND REFORM (CONSOLIDATION)
ORDINANCE*

ARRANGEMENT OF SECTIONS

Section .................................. Page

1. Short title................... ... ... ... ... ... ... ... ... 3

PART I

[Repealed]

PART 11

ASSIGNMENTS

9. Assignment of debt or chose in action ...... ... ... ... ... ... ... ... 3

10.[Repealed] .............. ... ... ... ... ... ... ... ... ... 4

PART III

CONTRACT

11. Stipulations not of the essence of contracts ... ... ... ... ... ... ... 4

12.[Repealed] ........................ ... ... ... ... ... ... ... ... ... 4

13.Action not maintainable on representations of character etc. unless in writing 4

13A.Part performance and damages ... ... ... ... ... ... ... ... ... ... 4

14. Consideration for guarantee need not appear by writing ... ... ... ... ... 4

15. Right of surety who discharges liability to assignment of all securities held by creditor 5

16.Adjustment of rights and liabilities of parties to frustrated contracts ... ... 5

17.Provision as to the application of sections 16, 17 and 18 ... ... ... ... ... 6

18.Saving for settlement or contrary agreement ... ... ... ... ... ... ... 7

PART IV

TORT

19. [Repealed] ................................ ... ... ... ... ... ... ... 7

20. Effect of death on certain causes ......... ... ... ... ... ... ... ... ... 8

20A.Abolition of rights to damages for loss of expectation of life ... ... ... ... 9
20B.Abolition of common law actions for loss of society or service ... ... ... 9
*Note: This Ordinance consolidates, as at 31 December 1971, provisions which previously appeared
in the following Ordinances(1) Law Amendment (Miscellaneous Provisions) Ordinance (Cap.
23, 1964 Ed.) (2) Law Reform (Frustrated Contracts) Ordinance (Cap. 25, 1964 Ed.) (3)
Tortfeasors Ordinance (Cap. 28, 1970 Ed.) (4) Law Reform (Miscellaneous Provisions)
Ordinance (Cap. 271, 1964 Ed.)





Section...................................... Page

20C.Actions for loss of society or services ... ... ... ... ... ... ... ... ... 10

21.Apportionment of liability in case of contributory negligence ... ... ... 12

22.Abolition of the defence of common employment ... ... ... ... ... ... 14

PART IVA

CONGENITAL DISABILITIES-CIVIL
LIABILITY

22A.Interpretation and other supplementary provisions ... ... ... ... ... ... 14

22B.Civil liability to child born disabled ... ... ... ... ... ... ... ... ... 14

22C.Liability to be regarded as liability for personal injuries sustained by child

immediately after its birth.. ... ... ... ... ... ... ... 15

22D. No damages for loss of expectation of life unless child lives for at least 48 hours 16

22E.Application to Crown ......... ... ... ... ... ... ... ... ... ... ... 16

PART V

BREACH OF PROMISE

23.Engagements to marry not enforceable at law ... ... ... ... ... ... ... 16

24.Property of engaged couples ... ... ... ... ... ... ... ... ... ... 16
25.Gifts between engaged couples . ... ... ... ... ... ... ... ... ... 16

PART VI

MISCELLANEOUS

26.Validity of instruments under seal executed by persons not appointed under seal 17

27.Payment of emoluments, etc. when the payee is certified to be incapable ... 17

28.[Repealed].......... ............... ... ... ... ... ... ... ... ... 17





CHAPTER 23

LAW AMENDMENT AND REFORM (CONSOLIDATION)

To consolidate Ordinances relating to interests in land, assignments,
contract, tort, breach of promise and foreign corporations.

[1 July 1901.]

1. This Ordinance may be cited as the Law Amendment and
Reform (Consolidation) Ordinance.

PART 1

[Repealed, 62 of 1984, s. 661

PART 11

ASSIGNMENTS

9. Any absolute assignment, by writing under the hand of the
assignor (not purporting to be by way of charge only), of any debt or
other legal chose in action, of which express notice in writing has been
given to the debtor, trustee or other person from whom the assignor
would have been entitled to receive or claim such debt or chose in
action, shall be and be deemed to have been effectual in law (subject to
all equities which would have been entitled to priority over the right of
the assignee if this section~ seetions 2, 3, 4, 40 mid 11 1 -had not been
enacted) to pass and transfer the legal right to

section 11 of this Ordinance and sections 25 and 49 of the
Conveyancing and Property Ordinance





such debt or chose in action from the date of such notice, and all legal
and other remedies for the same, and the power to give a good
discharge for the same, without the concurrence of the assignor:

Provided that if the debtor, trustee or other person liable in respect
of such debt or chose in action has had notice that such assignment is
disputed by the assignor or any one claiming under him or of any other
opposing or conflicting claims to such debt or chose in action, he shall
be entitled to call upon the several person making claim thereto to
interplead concerning the same, or he may pay the same into the court
under and in conformity with the provisions of any Ordinance relating
to trustees.

(4 of 1901, s. 8, incorporated. Amended, 50 of 1911, and 1 of
1912, Schedule)

10. [Repealed, 62 of 1984, s. 66]

PART III

CONTRACT

11. Stipulations in contracts, as to time or otherwise, which would
not, before 13 October 1873, have been deemed to be or to have become
of the essence of such contracts in the court in its equitable jurisdiction
shall receive in the court the same construction and effect as they
would formerly have received in equity.

(4 of 1901, s. 9, incorporated)

12. [Repealed, 72 of 1972, s. 21

13. No action shall be brought whereby to charge any person upon
or by reason of any representation or assurance made or given
concerning or relating to the character, conduct, credit, ability, trade or
dealings of any person, to the intent or purpose that such other person
may obtain credit, money or goods thereupon, unless such
representation or assurance is made in writing, signed by the party to
be charged therewith.

(Added, 53 of 1971, s. 2)

13A. (1) A court may award damages for breach of a contract of
which there has been part performance notwithstanding that an order
for specific performance could not, in the circumstances of the case, be
made by the court.

(2) This section shall not apply to any contract made before 31
December 1972.

(Added, 72 of 1972, s. 3)

14. No special promise made by any person to answer for the debt,
default or miscarriage of another person. being in writing, and signed
by the party charged therewith or some other person by him





thereunto lawfully authorized, shall be deemed invalid to support an
action, suit or other proceeding to charge the person by whom such
promise has been made, by reason only that the consideration for such
promise does not appear in writing or by necessary inference from a
written document.

(13 of 1864, s. 4, incorporated. Amended, 50 of 1911.

Replaced, 53 of 1971, s. 2)

15. (1) Every person who, being surety for the debt or duty of
another or being liable with another for any debt or duty, pays such
debt or performs such duty, shall be entitled to have assigned to him, or
to a trustee for him, every judgment, specialty, or other security which is
held by the creditor in respect of such debt or duty, whether such
judgment, specialty, or other security is or is not deemed at law to have
been satisfied by the payment of the debt or performance of the duty.

(2) Such person shall be entitled to stand in the place of the
creditor, to use all the remedies, and, if need be and upon a proper
indemnity, to use the name of the creditor, in any action or other
proceeding at law or in equity, in order to obtain from the principal
debtor or any co-surety, co-contractor or co-debtor, as the case may be,
indemnification for the advances made and loss sustained by the
person who has so paid such debt or performed such duty, and such
payment or performance so made by such surety shall not be a bar to
any such action or other proceeding by him.

(3) No co-surety, co-contractor, or co-debtor, shall be entitled to
recover from any other co-surety, co-contractor, or co-debtor, by the
means aforesaid, more than the just proportion to which, as between
those parties themselves, such last mentioned person is justly liable.

(13 of 1864, s. 6, incorporated. Replaced, 53 of 1971, s. 2)

16. (1) Where a contract governed by law applicable to the Colony
has become impossible of performance or been otherwise frustrated,
and the parties thereto have for that reason been discharged from the
further performance of the contract, the following provisions of this
section shall, subject to the provisions of section 17, have effect in
relation thereto.

(2) All sums paid or payable to any party in pursuance of the
contract before the time when the parties were so discharged (in this
section and section 17 referred to as the time of discharge) shall, in the
case of sums so paid, be recoverable from him as money received by
him for the use of the party by whom the sums were paid, and, in the
case of sums so payable, cease to be so payable:

Provided that, if the party to whom the sums were so paid or
payable incurred expenses before the time of discharge in, or for the
purpose of, the performance of the contract, the court may, if it
considers it just to do so having regard to all the circumstances of the





case, allow him to retain or, as the case may be, recover the whole or
any part of the sums so paid or payable, not being an amount in
excess of the expenses so incurred.

(3) Where any party to the contract has, by reason of anything
done by any other party thereto in, or for the purpose of, the
performance of the contract, obtained a valuable benefit (other than
a payment of money to which subsection (2) applies) before the
time of discharge, there shall be recoverable from him by the said
other party such sum (if any), not exceeding the value of the said
benefit to the party obtaining it, as the court considers just, having
regard to all the circumstances of the case and, in particular-

(a)the amount of any expenses incurred before the time of
discharge by the benefited party in, or for the purpose of,
the performance of the contract, including any sums paid
or payable by him to any other party in pursuance of the
contract and retained or recoverable by that party under
subsection (2); and

(b)the effect, in relation to the said benefit, of the circumstances
giving rise to the frustration of the contract.

(4) In estimating, for the purposes of subsections (1), (2) and
(3), the amount of any expenses incurred by any party to the
contract, the court may, without prejudice to the generality of the
said subsections, include such sum as appears to be reasonable in
respect of overhead expenses and in respect of any work or services
performed personally by the said party.

(5) In considering whether any sum ought to be recovered or
retained under subsections (1), (2), (3) and (4) by any party to the
contract, the court shall not take into account any sums which have,
by reason of the circumstances giving rise to the frustration of the
contract, become payable to that party under any contract of
insurance unless there was an obligation to insure imposed by an
express term of the frustrated contract or by or under any enact-
ment.

(6) Where any person has assumed obligations under the
contract in consideration of the conferring of a benefit by any other
party to the contract upon any other person, whether a party to the
contract or not, the court may, if in all the circumstances of the case
it considers it just to do so, treat for the purposes of subsection (3)
any benefit so conferred as a benefit obtained by the person who has
assumed the obligations as aforesaid.
(26 of 1948, s. 3, incorporated)

17. (1) This section and sections 16 and 18 shall save as is
hereinafter provided apply to contracts whether made before or
after 18 June 1948, as respects which the time of discharge is on or
after 8 December 1941, but not to contracts as respects which the
time of discharge is before the latter date.





(2) This section and sections 16 and 18 shall apply to contracts to
which the Crown is a party in like manner as to contracts between
subjects.

(3) Where any contract to which this section and sections 16 and
18 apply contains any provision which, upon the true construction of
the contract, is intended to have effect the event of circumstances
arising which operate, or would but for the said provision operate, to
frustrate the contract, or is intended to have effect whether such
circumstances arise or not, the court shall give effect to the said
provision and shall only give effect to section 16 to such extent, if any,
as appears to the court to be consistent with the said provision.

(4) Where it appears to the court that a part of any contract to
which this section and sections 16 and 18 apply can properly be
severed from the remainder of the contract, being a part wholly
performed before the time of discharge, or so performed except for the
payment in respect of that part of the contract of sums which are or can
be ascertained under the contract, the court shall treat that part of the
contract as if it were a separate contract and had not been frustrated
and shall treat section 16 as only applicable to the remainder of that
contract.

(5)This section and sections 16 and 18 shall not apply-

(a)to any charterparty, except a time charterparty or a charterparty
by way of demise, or to any contract (other than a
charterparty) for the carriage of goods by sea; or

(b)to any contract of insurance, save as is provided by section
16(5); or

(c)to any contract to which section 9 of the Sale of Goods
Ordinance, (which avoids contracts for the sale of specific
goods which perish before the risk has passed to the buyer)
applies, or to any other contract for the sale, or for the sale and
delivery, of specific goods, where the contract is frustrated by
reason of the fact that the goods have perished.

(6) In this section and section 16, 'court' includes any arbitrator
by or before whom the matter falls to be determined.

(26 of 1948, ss. 2 and 4, incorporated)

18. Nothing in sections 16 and 17 shall affect any settlement or
agreement between the parties subsequent to date of discharge
whereby the rights and liabilities of the contracting parties fell to be
determined otherwise than in accordance with the said sections.

(26 of 1948, s. 5, incorporated)

PART IV

TORT

19. [Repealed, 77 of 1984, s. 101





20. (1) Subject to the provisions of this section, on the death of
any person after 26 October 1951, all causes of action subsisting
against or vested in him shall survive against, or, as the case may be,
for the benefit of, his estate:

Provided that this subsection shall not apply to causes of action
for defamation or seduction or for inducing one spouse to leave or
remain apart from the other or to claims for damages on the ground
of adultery.

(1A) The right of a person to claim under section 4 of the Fatal
Accidents Ordinance (for bereavement) or under section 20C(I) of
this Ordinance (for loss of society) shall not survive for the benefit of
his estate on his death. (Added, 40 of 1986, s. 2)

(2) Where a cause of action survives as aforesaid for the benefit
of the estate of a deceased person, the damages recoverable for the
benefit of the estate of that person-

(a)shall not include any exemplary damages;

(b)shall, where the death of that person has been caused by
the act or omission which gives rise to the cause of action-
(i) be calculated without reference to any loss or gain to
his estate consequent on his death, except that a sum in
respect of funeral expenses may be included;
(ii) not include any damages in respect of loss of ability
to render services after his death;
(iii) not include any damages for loss of property,
whether income or otherwise, in respect of any period after
his death, except in so far as the court is satisfied that, but
for the act or omission that gave rise to the cause of action,
the deceased would have achieved an accumulation of
wealth by the time that he would otherwise have died, in
which case damages may be awarded in respect of the loss
of that wealth:

Provided that damages awarded under this sub-
paragraph shall be subject to such deduction as the court
considers it just to make in the circumstances of any
particular case on account of the accelerated receipt of
that wealth and in order to avoid over-compensation.
(Replaced, 40 of 1986, s. 2)

(proceedings shall be maintainable in respect of a cause
of action i t hich by virtue of this section has survi~ed against
the estate fi~a~eceasecdi person, u 1 th

ngs, p ii
(a) proceedings ~againim in respect of that cause of action
were pending at the date is death; or

(b)proceedings are taken in respect reof not later than
6 months after his personal represeive took out
rep sentation.(Amended, 100 of 1970, Sche





(4) Where damage has been suffered by reason of any act or
omission in respect of which a cause of action would have subsisted
against any person if that person had not died before or at the same
time as the damage was suffered, there shall be deemed, for the
purposes of this section and sections 21 and 22, to have been
subsisting against him before his death such cause of action in respect
of that act or omission as would have subsisted if he had died after the
damage was suffered.

(5) The rights conferred by this section and sections 21 and 22 for
the benefit of the estates of deceased persons shall be in addition to
and not in derogation of any rights conferred on the dependants of
deceased persons by the Fatal Accidents Ordinance and so much of
this section and sections 21 and 22 as relates to causes of action against
the estates of deceased persons shall apply in relation to causes of
action under the said Ordinance as it applies in relation to other causes
of action not expressly excepted from the operation of subsection (1).

(6) In the event of the insolvency of an estate against which
proceedings are maintainable by virtue of this section, any liability in
respect of the cause of action in respect of which the proceedings are
maintainable shall be deemed to be a debt provable in the administration
of the estate, notwithstanding that it is a demand in the nature of
unliquidated damages arising otherwise than by a contract, promise or
breach of trust.

(36 of 1951, s. 2, incorporated)

20A. (1) In an action for damages for personal injuries

(a)no damages shall be recoverable in respect of any loss of
expectation of life caused to the injured person by the injuries;
but

(b)if the injured person's expectation of life has been reduced by
the injuries, the court, in assessing damages in respect of pain
and suffering caused by the injuries, shall take account of any
suffering caused or likely to be caused to him by awareness
that his expectation of life has been so reduced.

(2) The reference in subsection (1)(a) to damages in respect of
loss of expectation of life does not include damages in respect of loss of
income.

(Added, 40 of 1986, s. 3)

20B. Except as provided in section 20C, no person shall be liable in
tort

(a)to a husband on the ground only of having deprived him of
the services or society of his wife;

(b)to a parent (or person standing in the place of a parent) on the
ground only of having deprived him of the services of a child;
or





(c) on the ground only-

(i) of having deprived another of the services of his menial
servant;

(ii) of having deprived another of the services of his female
servant by raping or seducing her; o(iii) of enticement of a servant or harbouring a servant.
(Added, 40 of 1986, s. 3)

20C. (1) Where injury is caused to any person by any wrongful act,
neglect or default which entitles him to maintain an action and recover
damages, and which causes any person referred to in paragraph (a), (b),
(c), (d), (e), (f) or (g) to be deprived of his society, the person who is
liable to such an action shall, subject to subsection (3), also be liable in
damages for the loss of the injured person's society suffered by such of
the following persons as survive 30 days after the date on which the
cause of action accrued

(a)the husband or wife of the injured person, unless they had
been living apart for a continuous period of at least 2 years
immediately preceding the date when the cause of action
accrued; or

(b)where there is no spouse entitled to recover damages under
paragraph (a), any children of the injured person; or

(c)where there is no person by or for whom a claim can be made
under paragraph (a) or (b), any concubine taken by the
deceased before 7 October 1971; or

(d)where there is no person by or for whom a claim can be made
under paragraph (a), (b) or (c), any person who

(i) was living with the deceased in the same household
immediately before the date of his death; and

(ii) had been living with the deceased in the same
household for at least 2 years before that date,

as the husband or wife of the deceased; or

(e)where there is no person by or for whom a claim can be made
under paragraph (a), (b), (c) or (d), the parents of the
deceased or (if the deceased was illegitimate) his mother; or

(f)where there is no person by or for whom a claim can be made
under paragraph (a), (b), (c), (d) or (e), but the deceased was
at the date of his death a minor, any person who during any
marriage to which that person was a party treated the
deceased as a son or daugher of the family in relation to that
marriage; or

(g)where there is no other person by or for whom a claim can be
made under this subsection, any brother or sister of the
deceased.

(2) The total sum awarded as damages under subsection (1) in
respect of any injured person





(a)shall not exceed the sum specified in section 4(3) of the Fatal
Accidents Ordinance; and

(b)shall, where there are 2 or more claimants, be divided equally
between them.

(3) Damages shall not be payable by virtue of subsection (1) if the
injured person dies as a result of the act, neglect or default referred to in
that subsection and his death gives rise to a right to claim damages for
bereavement under section 4 of the Fatal Accidents Ordinance.

(4) Where injury is caused to any person by any wrongful act,
neglect or default which entitles him to maintain an action and recover
damages in respect thereof and which causes any dependant of the
injured person to be deprived of his gratuitous services, the action may
include a claim for damages by the injured person for impairment of his
ability to render such services.

(5) In this section-

'child' of an injured person includes-

(a)a child adopted by him in pursuance either of an adoption
order made under the Adoption Ordinance or of any other
adoption recognized as valid by the law of Hong Kong; and

(b)a person who, during any marriage to which the injured
person was at any time a party, was treated by him as a son or
daughter of the family in relation to that marriage;

'dependant', in relation to an injured person, means-

(a)the wife, husband, former wife or former husband of the
injured person and any person whose marriage to the injured
person has been annulled or declared void;

(b)a concubine lawfully taken by the deceased before 7 October
1971;

(c) any person who-

(i) was living with the injured person in the same
household immediately before the date of his injury; and

(ii) had been living with the injured person in the same
household for at least 2 years before that date,

as the husband or wife of the injured person;

(d)any parent or other ascendant of the injured person;

(e)any person (not being a parent of the injured person) who,
during any marriage to which that person was a party, treated
the injured person as a son or daughter of the family in
relation to that marriage;

(f) any child or other descendant of the injured person;





(g)any person (not being a child of the injured person) who,
during any marriage to which the injured person was at any
time a party, was treated by the injured person as a son or
daughter of the family in relation to that marriage;

(h)any person who is, or is the issue of, a brother, sister, uncle or
aunt of the injured person;

(i)any person who is, or is the issue of, a brother or sister of a
grandparent of the injured person;

(j)any godchild or godparent of the injured person according to
Chinese custom;

'injury' includes any disease and any impairment of a person's
physical or mental condition;

'parent' includes any person who, during any marriage to which that
person was a party, treated the injured person as a son or daughter
of the family in relation to that marriage;

'wife' has the same meaning as in the Fatal Accidents Ordinance,

and in deducing any relationship for the purposes of this section,
section 2(2) of the Fatal Accidents Ordinance shall apply as it applies
for the purposes of that Ordinance.

(Added, 40 of 1986, s. 3)

21. (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 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:

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 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
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 (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, applies and that Act shall have
effect as if this section and sections 20 and 22 had not been enacted.

(9) This section shall not apply to any case where the acts or
omissions giving rise to the claim occurred before 26 October 1951.

(10) In this section-

'court' means, in relation to any claim, the court or arbitrator by or
before whom the claim falls to be determined;

'damage' includes loss of life,and personal injury;

'dependant' means any person for whose benefit an action could be
brought under the Fatal Accidents Ordinance;

'fault' 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.

(36 of 1951, s. 4,
incorporated)





22. (1) It shall not be a defence to an employer who is sued in
respect of personal injuries caused by the negligence of a person
employed by him, that that person was at the time the injuries were
caused in common employment with the person injured.

(2) Any provision contained in a contract of service or
apprenticeship, or in an agreement collateral thereto, (including a
contract or agreement entered into before 26 October 195 1) shall be
void in so far as it would have the effect of excluding or limiting any
liability of the employer in respect of personal injuries caused to the
person employed or apprenticed by the negligence of persons in
common employment with him.

(3) In this section, 'personal injury' includes any disease and any
impairment of a person's physical or mental condition and 'injured'
shall be construed accordingly.

(36 of 1951, s. 5, incorporated)

PART IVA

CONGENITAL DISABILITIES-CIVIL LIABILITY

22A. (1) Without prejudice to subsection (2), this Part applies in
respect of births after (but not before) the commencement* of this Part,
and in respect of any such birth it replaces any law in force before such
commencement whereby a person could be liable to a child in respect of
disabilities with which it might be born; but in section 22B(3) the
expression 'liable in tort' does not include any reference to liability by
virtue of this Part, or to liability by virtue of any such law.

(2) Section 22B does not affect the operation of the Nuclear
Installations Act 1965 as extended to Hong Kong by the Nuclear
Installations (Hong Kong) Order 1972, as to liability for, and
compensation in respect of, injury or damage caused by occurrences
involving nuclear matter or the emission of ionising radiations.

(3) In this Part, 'born' means born alive (the moment of a child's
birth being when it first has a life separate from its mother), and 'birth'
has a corresponding meaning.

(4) References in this Part to a child being born disabled or with
disabilities are to its being born with any deformity, disease or
abnormality, including predisposition (whether or not susceptible of
immediate prognosis) to physical or mental defect in the future.

22B. (1) If a child is born disabled as the result of such an
occurrence before its birth as is mentioned in subsection (2) and a
person (other than the child's own mother) is under this section
answerable to the child in respect of the occurrence, the child's
disabilities are to be regarded as damage resulting from the wrongful act
of that person and actionable accordingly at the suit of the child.





(2)An occurrence to which this section applies is one which-

(a)affected either parent of the child in his or her ability to have a
normal, healthy child; or

(b)affected the mother during her pregnancy, or affected her or
the child in the course of its birth, so that the child is born
with disabilities which would not otherwise have been
present.

(3) Subject to subsections (4) to (7), a person (here referred to as
'the defendant') is answerable to the child if he was liable in tort to the
parent or would, if sued in due time, have been so; and it is no answer
that there could not have been such liability because the parent
suffered no actionable injury, if there was a breach of legal duty which,
accompanied by injury, would have given rise to liability.

(4) In the case of an occurrence preceding the time of conception,
the defendant is not answerable to the child if at that time either or both
of the parents knew the risk of their child being born disabled (that is to
say, the particular risk created by the occurrence); but should it be the
child's father who is the defendant, this subsection does not apply if he
knew of the risk and the mother did not.

(5) The defendant is not answerable to, the child, for anything he
did or omitted to do when responsible in a professional capacity for
treating or advising the parent, if he took reasonable care having due
regard to then received professional opinion applicable to the particular
class of case; but this does not mean that he is answerable only
because he departed from received opinion.

(6) Liability to the child under this section may be treated as
having been excluded or limited by contract made with the parent
affected, to the same extent and subject to the same restrictions as
liability in the parent's own case; and a contract term which could have
been set up by the defendant in an action by the parent, so as to
exclude or limit his liability to him or her, operates in the defendant's
favour to the same, but no greater, extent in an action under this section
by the child.

(7) If in the child's action under this section it is shown that the
parent affected shared the responsibility for the child being born
disabled, the damages are to be reduced to such extent as the court
thinks just and equitable having regard to the extent of the parent's
responsibility.

22C. Liability to a child under section 22B is to be regarded

(a)as respects all its incidents and any matters arising or to arise
out of it; and

(b)subject to any contrary context or intention, for the purpose
of construing references in enactments and documents to
personal or bodily injuries and cognate matters,

as liability for personal injuries sustained by the child immediately after
its birth.





22D. No damages shall be recoverable under section 22B in respect
of any loss of expectation of life unless the child lives for at least 48
hours.

22E. This Part binds the Crown.

(Part IVA added, 20 of 1978, s. 2)

PART V

BREACH OF PROMISE

23. (1) An agreement between 2 persons to marry one another shall
not have effect as a contract giving rise to legal rights and no action
shall lie for breach of such an agreement.

(2) This section shall have effect in relation to agreements entered
into before 7 October 1971, except that it shall not affect any action
begun before that date.

(35 of 1971, s. 4, incorporated)

24. (1) Where an agreement to marry is terminated, any rule of law
relating to the rights of husbands and wives in relation to property in
which either or both has or have a beneficial interest shall apply, in
relation to any property in which either or both of the parties to the
agreement had a beneficial interest while the agreement was in force, as
it applies in relation to property in which a husband or wife has a
beneficial interest.

(2) Where an agreement to marry is terminated, sections 6 and 7 of
the Married Persons Status Ordinance (which sections confer power on
a judge to settle disputes between husband and wife about property)
shall apply, as if the parties were married, to any dispute between, or
claim by, one of them in relation to property in which either or both had
a beneficial interest while the agreement was in force; but an application
made by virtue of this section to the judge under the said sections
shall be made within 3 years of the termination of the agreement.

(35 of 1971, s. 4, incorporated)

25. (1) A party to an agreement to marry who makes a gift of
property to the other party to the agreement on the condition (express
or implied) that it shall be returned if the agreement is terminated shall
not be prevented from recovering the property by reason only of his
having terminated the agreement.

(2) The gift of an engagement ring shall be presumed to be an
absolute gift; this presumption may be rebutted by proving that the ring
was given on the condition, express or implied, that it should be
returned if the marriage did not take place for any reason.

(35 of 1971, s. 4, incorporated)





PART VI

MISCELLANEOUS

26. (1) The fact that a power of attorney or document of
authorization given by a foreign corporation to or in favour of any
person is not under seal shall not, if such power of attorney or
document of authorization is valid as a power of attorney or document
of authorization in accordance with the laws of the state under which
such corporation is incorporated, affect, for any purpose intended to be
effected within Hong Kong, the validity or effect of any instrument
under seal executed on behalf of such corporation by such person,
which shall for all such purposes be as valid as if such authority had
been under seal.

(2) In this section, 'foreign corporation' means any corporate
body duly incorporated in accordance with the laws of any foreign
state, and 'foreign state' does not include any British protectorate.

(1 of 1920, ss. 2 and 3, incorporated. Replaced, 53 of 1971,
s.3)

27. When any sum in respect of emoluments, pension, gratuity or
other allowance is payable out of the revenues of the Colony to any
public servant, or to the widow or child of any public servant, and the
person to whom the sum is payable is certified by 2 persons who are
either Government Medical Officers or medical practitioners to be
unable by reason of mental disability to manage his or her affairs, the
Governor in Council may direct the payment of so much of the said sum
as he may think fit to the institution or person having the care of the
disabled person, and may direct the payment of the surplus, if any, or so
much thereof as he may think fit, for or towards the maintenance and
benefit of the wife or husband and relatives of the disabled person, and
payment under such direction shall be a sufficient discharge form all
liability in respect of any sums so paid.

(27 of 1935, s. 2, incorporated)

28. [Repealed, 62 of 1984, s. 66]
Originally 4 of 1901. 13 of 1864. 7 of 1886. 6 of 1901. 31 of 1911. 1 of 1920. 27 of 1935. (Cap. 23, 1964.) 11 of 1936. (Cap. 28, 1970.) 26 of 1948. (Cap. 25, 1964.) 36 of 1951. (Cap. 271, 1964.) 9 of 1885. 2 of 1897. 29 of 1901. 50 of 1911. 51 of 1911. 62 of 1911. 63 of 1911. 1 of 1912. 2 of 1912. 8 of 1912. 21 of 1912. 22 of 1912. 43 of 1912. 5 of 1924. 33 of 1939. 31 of 1965. 31 of 1966. 6 of 1970. 27 of 1970. 100 of 1970. 35 of 1971. 53 of 1971. 72 of 1972. 20 of 1978. 40 of 1979. 62 of 1984. 77 of 1984. 40 of 1986. Short title. Assignment of debt or chose in action. 1873 c. 66, s. 25(6). Stipulations not of the essence of contracts. 1873 c. 66, s. 25(7). Action not maintainable on representations of character etc. unless in writing. 1828 c. 14, s. 6. Part performance and damages. Consideration for guarantee need not appear by writing. 1856 c. 97, s. 3. Right of surety who discharges liability to assignment of all securities held by creditor. 1856 c. 97, s. 5. Adjustment of rights and liabilities of parties to frustrated contracts. 1943 c. 40, s. 1. Provision as to the application of sections 16, 17 and 18. 1943 c, 40, s. 2. (Cap. 26.) Saving for settlement or contrary agreement. Effect of death on certain causes. 1934 c. 41, s. 1. (Cap. 22.) (Cap. 22.) Abolition of rights to damages for loss of expectation of life. 1982 c. 53, s. 1. Abolition of common law actions for loss of society or service. 1982 c. 53, s. 2. Actions for loss of society or services. (Cap. 22.) (Cap. 22.) (Cap. 290.) (Cap. 22.) Apportionment of liability in case of contributory negligence. 1945 c. 28, s. 1. (Cap. 377.) (Cap. 22.) (1932 c. 36.) 1945 c. 28, s. 3. (1911 c. 57.) 1945 c. 28, s. 3. 1945 c. 28, s. 4. (Cap. 22.) Abolition of the defence of common employment. [cf. 1948 c. 41, s. 1.] [cf. 1948 c. 41, s. 3.] Interpretation and other supplementary provisions. 1976 c. 28, s. 4(5). [*14.4.78.] (1965 c. 57.) (S.I. 1972/126, App. III, p. DC 1.) Civil liability to child born disabled. 1976 c. 28, s. 1. Liability to be regarded as liability for personal injuries sustained by child immediately after its birth. 1976 c. 28, s. 4(3). No damages for loss of expectation of life unless child lives for at least 48 hours. 1976 c. 28, s. 4(4). Application to Crown. Engagements to marry not enforceable at law. 1970 c. 33, s. 1. Property of engaged couples. 1970 c. 33, s. 2. (Cap. 182.) Gifts between engaged couples. 1970 c. 33, s. 3. Validity of instruments under seal executed by persons not appointed under seal. Payment of emoluments, etc., when the payee is certified to be incapable. 1890 c. 5, s. 335.

Originally 4 of 1901. 13 of 1864. 7 of 1886. 6 of 1901. 31 of 1911. 1 of 1920. 27 of 1935. (Cap. 23, 1964.) 11 of 1936. (Cap. 28, 1970.) 26 of 1948. (Cap. 25, 1964.) 36 of 1951. (Cap. 271, 1964.) 9 of 1885. 2 of 1897. 29 of 1901. 50 of 1911. 51 of 1911. 62 of 1911. 63 of 1911. 1 of 1912. 2 of 1912. 8 of 1912. 21 of 1912. 22 of 1912. 43 of 1912. 5 of 1924. 33 of 1939. 31 of 1965. 31 of 1966. 6 of 1970. 27 of 1970. 100 of 1970. 35 of 1971. 53 of 1971. 72 of 1972. 20 of 1978. 40 of 1979. 62 of 1984. 77 of 1984. 40 of 1986. Short title. Assignment of debt or chose in action. 1873 c. 66, s. 25(6). Stipulations not of the essence of contracts. 1873 c. 66, s. 25(7). Action not maintainable on representations of character etc. unless in writing. 1828 c. 14, s. 6. Part performance and damages. Consideration for guarantee need not appear by writing. 1856 c. 97, s. 3. Right of surety who discharges liability to assignment of all securities held by creditor. 1856 c. 97, s. 5. Adjustment of rights and liabilities of parties to frustrated contracts. 1943 c. 40, s. 1. Provision as to the application of sections 16, 17 and 18. 1943 c, 40, s. 2. (Cap. 26.) Saving for settlement or contrary agreement. Effect of death on certain causes. 1934 c. 41, s. 1. (Cap. 22.) (Cap. 22.) Abolition of rights to damages for loss of expectation of life. 1982 c. 53, s. 1. Abolition of common law actions for loss of society or service. 1982 c. 53, s. 2. Actions for loss of society or services. (Cap. 22.) (Cap. 22.) (Cap. 290.) (Cap. 22.) Apportionment of liability in case of contributory negligence. 1945 c. 28, s. 1. (Cap. 377.) (Cap. 22.) (1932 c. 36.) 1945 c. 28, s. 3. (1911 c. 57.) 1945 c. 28, s. 3. 1945 c. 28, s. 4. (Cap. 22.) Abolition of the defence of common employment. [cf. 1948 c. 41, s. 1.] [cf. 1948 c. 41, s. 3.] Interpretation and other supplementary provisions. 1976 c. 28, s. 4(5). [*14.4.78.] (1965 c. 57.) (S.I. 1972/126, App. III, p. DC 1.) Civil liability to child born disabled. 1976 c. 28, s. 1. Liability to be regarded as liability for personal injuries sustained by child immediately after its birth. 1976 c. 28, s. 4(3). No damages for loss of expectation of life unless child lives for at least 48 hours. 1976 c. 28, s. 4(4). Application to Crown. Engagements to marry not enforceable at law. 1970 c. 33, s. 1. Property of engaged couples. 1970 c. 33, s. 2. (Cap. 182.) Gifts between engaged couples. 1970 c. 33, s. 3. Validity of instruments under seal executed by persons not appointed under seal. Payment of emoluments, etc., when the payee is certified to be incapable. 1890 c. 5, s. 335.

https://oelawhk.lib.hku.hk/items/show/2252

1964

v3

23

18