NOTE FOR GUIDANCE

指引紀要

The following notes are for the guidance of those who may have a claim on the Bureau as contemplated by its Agreement with the Government of Hong Kong, and of their legal advisers, but they must not be taken as rendering unnecessary a careful study of the Agreement itself. Communications on any matters connected with the scheme should be addressed to the Bureau whose address is:

以下紀要是本局為有意向本局索償的人士及其法律顧問提供的一些指引，本局是依據與香港政府達成的協議而受理索償的。這指引紀要不應視為給予上述協議作詳盡解釋之用，要獲得本局所施行的計劃的更多資料，歡迎請來函:

MOTOR INSURERS' BUREAU OF HONG KONG
ROOM 902,
BANK OF EAST ASIA HARBOUR VIEW CENTRE,
56 GLOUCESTER ROAD, WANCHAI,
HONG KONG

香港汽車保險局
灣仔告士打道56號
東亞銀行港灣中心 902室

1)

The Bureau's liability dates from 1st February, 1981. Claims arising out of accidents which occurred before that date are excluded from the Agreement.

1)

本局的責任從1981年2月1日開始，一切發生於這日前的交通意外索償，皆不適用於本局與政府的協議中。

2)

If damages are awarded at first instance by a court of competent jurisdiction in Hong Kong (or on appeal therefrom either to a superior court in Hong Kong or to the Final Court of Appeal ) in respect of death or bodily injury arising out of the use of a motor vehicle on a road in circumstances where the liability is required to be covered by insurance under the Motor Vehicles Insurance (Third Party Risks) Ordinance, and such damages, or any part of them, remain unpaid twenty-eight days after the judgment becomes enforceable for any reason other than an insurance becoming ineffective due to insolvency of the Insurer, then, subject to the provisions of the Agreement, the Bureau will pay the unrecovered amount (including any interest awarded by the court and taxed costs) to the person in whose favour the judgment has been given, against an assignment of the judgment debt.

2)

依據〈汽車保險（第三者風險）條例〉任何人仕如被道路上使用的汽車導致身體損傷或死亡，並經由香港法院初審判獲賠償（若屬上訴案件，經由上訴庭或終審法院判定賠償），而該損失或部分損失在判決生效後廿八天內，基於任何原因，仍未能償付者（因保險人破產而導致保險失效者除外），本局便會依照與政府訂定的協議，在應負的有關法律責任內，向索償者支付判定的全部或餘下款項（其中包括法庭裁定的利息及堂費支出 ）。

3)

Nothing in the Agreement affects the position at law of the parties to an action for damages arising out of the driving of a motor vehicle. The Bureau's liability under the Agreement can only arise when the plaintiff has successfully established his case against the defendant or defendants or other person alleged to be liable in the usual manner and judgment has been given in his favour. There is, of course, nothing to exclude the acceptance of compensation by the plaintiff under a settlement negotiated by the Bureau between the plaintiff and the defendant or defendants or any person alleged to be liable.

3)

本協議並不影響涉及因使用汽車導致損失而訴訟各方的法律地位。本局祇會在原告人經法律序，成功向被告人或被認為對該意外需負責任的人士追索，並獲得判定賠償後，才承擔協議內訂定的責任。當然，原訴人亦可接受經由本局與被告及有關人士商議而經雙方協議的賠償。

4)

WHERE THERE IS A POLICY
In those cases where it is ascertained that there is in existence a policy issued in compliance with the Motor Vehicles Insurance (Third Party Risks) Ordinance, it will not be necessary for the victim to take any special steps to secure to himself the benefits of the scheme by notifying the Bureau, even though the insurer concerned may be in a position to repudiate liability under the policy for the reason that its conditions have been breached or it was obtained by improper methods, or that due notice of claim has not been given. To avoid possible misapprehension, it is emphasised that there is nothing in the scheme affecting any obligations imposed on a policyholder by his policy. Policyholders are not released from their contractual obligations to their insurers, although the scheme protects third party victims from the consequences of failure to observe them. For example, the failure of a policyholder to notify claims to his insurers as required by his policy, although not affecting a victim's right to benefit under the scheme, may leave the policyholder liable to his insurers.

4)

已購保險的情況
倘肯定涉事的汽車已依從汽車保險（第三者風險）條例而購買了保險，那麼即使有關的保險人以投保人違反了保單條款，或保險單用不當方法而獲得，或投保人沒有給予足夠的通知為理由而拒絕承擔意外的賠償，受害人亦不需要採取任何行動去通知本局，以確保本身會在本局施行的計劃中的受惠。為避免誤解，本局強調，本局施行的計劃絕不會影響到保險單持有人在保險單上訂明必須負上的責任。雖然本局施行的計劃可保障一些受害的第三者，使他們不致因有人未有盡責而不能獲得賠償，但卻不能免除保險單持有人與保險人雙方的合約責任。例如，保險單持有人若未能按保險單的規定在意外發生後的指定時間內通知保險人，即使這對受害人於本計劃的權利並未受影響，但卻可能導致保險單持有人對其保險人負上責任。

WHERE THERE IS NO POLICY
In cases where there is no policy, or for any reason the existence of a policy is in doubt, the victim or those acting on his behalf must notify the Bureau of the claim. It is a condition of the Bureau's liability that it should receive notification before the commencement of proceedings against the person alleged to be liable. In practice, however, it will be preferable to notify the Bureau in all cases where the name of the insurer is not speedily forthcoming.

未購保險的情況
倘涉事的汽車並未購保險，或基於任何原因，對是否購有保險有所懷疑，受害人及其代表必須知會本局有關的一切索償。倘要向本局申請賠償，申請人必需在發出傳票予對意外負責任人士前通知本局。實際上，倘若未能快速確認誰是保險人時，亦應知會本局。

5)

Claims arising out of the use of uninsured vehicles owned by or in the possession of the Government of the Hong Kong Special Administrative Region or otherwise exempted from complying with the compulsory insurance requirements of the Motor Vehicles Insurance (Third Party Risks) Ordinance will in the majority of cases be outside the scope of the Bureau's liability (see Clause 10 of the Agreement). In such cases the approach should be made to the responsible authority or person.

5)

若涉及索償的汽車是香港特別行政區政府所擁有，或是屬於〈汽車保險（第三者風險）條例〉規定要投保的豁免範圍，在大部分案件中，依照與政府協議本局毋須負上任何法律責任（協議第十條）。在此等情況下，有關人士應直接與負責機構或人士接觸。

6)

UNTRACED DRIVER
The liability of the Bureau does not extend to the compensation of any person who may suffer injury or death resulting from the driving of a vehicle the owner or driver of which cannot be traced. The Bureau will not, however, necessarily refuse to act in those cases. Where a person has sustained serious injury or serious and permanent disablement or has died as a result of injury and there is, in the view of the Bureau, reasonable certainty that the injury, disablement or death was caused by the negligent driving of a mechanically propelled vehicle the owner or driver of which cannot be traced, then the Bureau will at its discretion give sympathetic consideration to making an ex-gratia payment. Applications will only be considered, however, where it is reasonably certain that if the owner or driver had been traced he would have been found by a court to be under a liability to the applicant in respect of which he was required by the Motor Vehicles Insurance (Third Party Risks) Ordinance to be covered by insurance; that he was the only person who might be under any liability in respect of such injury; and that the failure of the applicant to secure judgment against him in respect of such injury was solely due to the applicant's inability to find him and serve him with legal process.

6)

未能尋獲涉事的司機
倘導致交通意外機動車輛的擁有人或司機已不能追尋，本局將不會負責任何賠償。然而，本局亦不排除會受理該類案件的可能。當本局肯定意外中嚴重受傷，或嚴重和永久傷殘，或已死亡的人士是因駕駛時疏忽的受害者，而涉事車輛的擁有人及司機並未能尋獲的時候，本局會行使酌情權，基於同情，考慮通融發給恩恤金予受害者。對申請通融發放恩恤金給予受害人的申請，本局須肯定涉事車輛的擁有人及司機，倘一旦已被尋獲，肯定會被法庭判定須依照汽車保險（第三者風險）條例，為該意外中的受害者作出賠償。本局亦需肯定該車輛的擁有人及司機是唯一需要為該意外受傷負責的人，而申請人祇是因為未能尋獲涉事車輛的擁有人或司機而未能成功依法律程序對該人士作出追討。