Lau Woon v. Kum Shing Construction Co

Case No.CACV 63/1979

Court

Court of Appeal

Date09 Jun 1980

Judge—

Case Document

100%Judiciary

CACV000063/1979

IN THE COURT OF APPEAL

1979 No. 63

BETWEEN
	LAU WOON	Appellant
	AND
	KUM SHING CONSTRUCTION CO.	Respondent

Coram: Li, J.A., O' Connor and Power, JJ.

Date of Judgment: 9 June 1980

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JUDGMENT

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Li, J.A.:

1. This is an appeal against the judge's finding in a Workmen's Compensation claim.

2. Up to 1978 the appellant had been living in a flat occupied by Lau Man (the deceased) and one Poon Pak-kam. The appellant was the only non-working occupant of that household. The evidence hereinafter set out establishes that the appellant was a member of the household of the deceased at the material time when the deceased died in February, 1978. The basis of the appellant's claim was that he was 66 years old; not able to work for his old age and was supported by the deceased for food and rent. This was disputed. What was not disputed was that for every month, when alive, the deceased used to give him $150 for cigarettes and clothings. The deceased died as a result of a heart attack while he was working. It has been decided in the court below that the deceased died in an accident arising out of and in the course of his employment. That finding is not the subject matter of appeal. The subject matter of appeal, is the question of dependency. In this, the learned trial judge found that the appellant had not proved his dependency for reasons given in his judgment. The judge, having gone through the definition of the term "dependency", said at p.5 as follows:-

"	Assuming for a moment that the applicant was a member of family of the deceased, he would still have to prove that he was dependent either wholly or in part upon his earnings at the time of death in order to qualify for compensation. The applicant's own evidence is not only conflicting but also sketchy in the extreme. Prior to the death of the deceased, the applicant said he lived with the deceased and another man by the name of Poon Pak-kam at a flat in Lai King Estate where he still lives with Mr. Poon. There are at least three versions in his evidence as to how he was financially dependent on the deceased before the latter's death. Firstly he said in examination in chief that the deceased gave him $150 a month to buy cigarettes and clothes, the Social Welfare Department paid his share of the rent and the deceased and Poon Pak-kam would be responsible for providing him with food. Then in cross-examination, he said that each of the three of them contributed to the expenses: the deceased and Mr. Poon paid their shares from their own wages while he himself paid his out of allowances from Social Welfare Department. He agreed that the deceased only gave him $150 as pocket money. The third version emerged under re-examination when he said the deceased paid for all his expenses. The applicant said that he had not been working for two years before the deceased died because he was not quite able to work ..........
	There is no legal or even moral obligation on part of the deceased to maintain a cousin who was perfectly in good health and about his own age. The deceased was himself 62 years of age and had to earn his own living as an earth coolie at a small wage of $43 a day which would give him an average income of about $1,000 or just slightly over $1,000 a month. Out of this small sum, he not only paid for the food and accommodation for the applicant but on top of that gave him $150 for his cigarettes and clothes. One wonders how much he got left for himself and why he did this?.............................................................................................................................................
	Even on his own evidence, (the appellant's) he has certainly not proved on balance of probabilities that he was a member of family of the deceased and that he was dependent upon the deceased's earnings at the time of his death. This is unfortunately a case of very poor and inadequate investigation. At least, Poon Pak-kam could and should have been interviewed to verify the applicant's story."

At the end of all this the learned judge said and the parties confirmed, that it was agreed that compensation, if awarded, should be $41,828.40.

3. The learned trial judge was justified in commenting on Poon Pak-kam not being called as a witness. However, as learned counsel for the appellant said, once it was not contradicted that the deceased prior to his death, used to pay the appellant $150 per month, at least partial dependency had been proved. In his conclusion that the appellant was not a member of the family the learned trial judge appeared to have ignored sub. para.(b) of the definition of the term "Member of a family" in the Ordinance which reads:-

"Any other person who at the time of injury resides with the workman as a member of his household."

4. The learned trial judge referred to the contraditions and poor Quality of the appellant's evidence. It appears that he did not accept the appellant's evidence that the deceased paid $150 per month to the appellant. We are satisfied that the learned trial judge made an unsustainable finding of fact in this regard as we cannot accept his finding that a Chinese person would be unlikely to support an aged and infirm relative. In this respect we are indebted to learned counsel for both parties in agreeing that we could read the report of the Social Welfare Officer. That report was intended for and was read by the trial judge although it had not been formally produced as an exhibit in the court below. This report dispels any apparent contradiction in the evidence of the appellant. First of all the learned trial judge found that at one time the appellant said that he (the appellant) contributed to the expenses of the household or the rent from his receipt of allowances from the Social Welfare Department. The report of the Social Welfare Department clears up this point. In fact the appellant received no Social Welfare old age allowance from the Government until late in 1978. That was long after the date of the deceased's death namely, the 17th February, 1978. The appellant could not have contributed to rent or household expenses before the 17th February, 1978 out of Social Welfare allowances. Even if the household expenses were divided into three shares it appeared that the deceased paid for the appellant's share as well as his own.

5. In any event the undisputed evidence was that the appellant received $150 from the deceased during the time he stayed in the household of the deceased. We are of the opinion that having regard to the evidence available in the court below, coupled with the report given by the Social Welfare Officer which cleared up the apparent conflicting aspects of the appellant's evidence, the question of dependency has been proved on the balance of probability despite the fact that Mr. Poon Pak-kam has not been called.

6. Accordingly, we allow this appeal and that the sum of $41,824.40 compensation should be paid to the appellant. There will be costs to the appellant for this appeal as well as costs in the court below.

7. Interest should be payable on that sum as from the date when the cause of action arose. The rate of interest should be 10% per annum.

Representation:

Martin Lee, Q.C. and Raymond Liu (D.L.A.) for appellant

Bruno d' Almada (H.H. Lau & Co.) for respondent