Wong Kou-shee and Another v. Chu Che-ping and Others

CACV000024/1980

Fatal Accidents Ordinance - damages - payments to dependants by Social Welfare Department of the Government did not "result from" death of Deceased but from benevolence of the Crown - not to be deducted.

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Coram: Sir Alan Huggins, V.-P., Leonard, J.A. and Silke, J.

Date of Judgment: 19th March 1981.

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The Plaintiffs sued as the administrators of the estate of a woman killed when she was knocked down by a public light bus driven by the 1st Defendant and owned by the 2nd Defendant. The trial judge found the Defendants liable and we dismissed their appeal on the issue of liability.

2. By their Respondents' Notice the Plaintiffs challenged the judge's deduction from the damages awarded under the Fatal Accidents Ordinance of moneys paid to the Deceased's dependants by the Social Welfare Department of the Government over a period of thirty-one months during which the husband had to stay at home to look after the children. The judge took the view that different considerations applied in a fatal accident case from those which applied in personal injuries cases and that, "viewed realistically, the Social Welfare Department payments resulted from the deceased's death". He held that the payments were deductible. We allowed the cross-appeal and said we would give our reasons later.

3. With respect to the learned judge, we do not agree that the payments resulted from the Deceased's death: they resulted from the impecuniosity of the dependants and from the benevolence of the Crown. Although the judge expressly refrained from considering the question of causation, we do not think that it was right to do so, for the wording of the statute shows that it is a relevant consideration.

4. An action under the Fatal Accidents Ordinance is for "such damages as.. [the court] may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought": s.4(2). Under s.9(1) "there shall not be taken into account any insurance money, benefit, pension or gratuity which has been or will or may be paid as a result of the death". That provision was necessary because a pension, for example, does reduce the injury resulting from the death.

5. In Tang Kwong-chui v Lee Fuk-yue 1980 Civil Appeal No. 22 this court held that no deduction should be made in a personal injuries case for acts of public benevolence, and the only argument advanced before us for adopting a different approach in the present case was that the social welfare payments made to the husband of the Deceased were a substitute for the wages he would have received had he not been forced to give up his employment in order to look after the children of the Deceased. Counsel sought support from Mehmet v Perry 1977 2 All E.R. 529, upon which the Judge had relied. In that case the plaintiff's wife had been killed in a motor accident and the claim was for damages under the Fatal Accidents Acts. Two of their children had a rare blood disorder and required constant attention. The husband gave up his employment in order to provide this. He received supplementary benefit under the Social Security Act 1975. The deputy judge asked at p.538e:

"If then I look at the matter broadly, as I believe I must, how can it be right (in the absence of any statutory requirement) to exclude from the balancing operation the sums which the plaintiff has received by way of supplementary benefit because he has given up work and lost his wages?"

He thought such exclusion could not be right, but he relied upon K. v J.M.P. Ltd. 1976 Q.B. 85, which in turn was based upon Parsons v B.N.M. Laboratories Ltd. 1964 1 Q.B. 95, a case which the Court of Appeal in Nabi v British Leyland (U.K.) Ltd. 1980 1 W.L.R. 529, 538H thought should be reviewed. The answer to the question asked by the deputy judge seems to us to be that it would have been right to exclude the supplementary benefit from the balancing operation because the payment was not a result of the death, as would have been a payment of insurance money or pension: it was a result of the husband's giving up his employment and remaining unemployed, a situation against which he was protected under the social security scheme. Indeed, for that protection he would have been making contributions during his previous employment, whilst the tortfeasor had made no such contribution.

6. In the present case the payments were even more remotely related to the death than were those in Mehmet v Perry, and the fact that the payments were made by way of substitution for the wages the husband would have received had he not given up his employment to look after the children was incidental. Those payments were not made under any statutory or contributory scheme and the husband had no right to them. They represented what in Perry v Cleaver 1970 A.C. 1, 14 Lord Reid called "the benevolence .. of the public at large", or what we would call "the benevolence of the Crown" since in Hong Kong the public at large has no appreciable control over the expenditure of the general revenue of the Colony. It would have been open to the Social Welfare Department to make it a condition of the payments that they be refunded if the Plaintiffs recovered damages from the Defendants, and the fact that no such condition was attached should not affect the liability of the Defendants.

7. We were referred to Kemp and Kemp on the Quantum of Damages (4th edition) Chapter 20 and we respectfully agree with the conclusion reached at p.221 that no distinction should be drawn between a personal injuries case and a fatal accident case in relation to charitable gifts. We adopt the view expressed in Peacock v Amusement Equipment Co. Ltd. 1954 2 Q.B. 347 that, if a payment is made as a result of generosity or affection and is not a benefit of which the plaintiff had any expectation as a result of the death, it should not be brought into account in assessing damages under the Fatal Accidents Acts: it is not made in consequence of the death. That decision was applied in Hay v Hughes 1975 Q.B. 790.

8. Accordingly the payments by the Social Welfare Department should not have been deducted and we entered judgment for the Plaintiffs for $346,493.00.

19th March 1981.

Representation: