Wong Cho-nam and Another v. Tak Lee Co
Read the full judgment text of DCEC 162/1973 on BabelCite. This District Court judgment was delivered on 11 March 1974.
1. This Application has been brought as a result of the death of a Mr. WONG Wing-cheung, who was an employee of the Respondent company, and who was the victim of a fatal accident during the course of his employment on 1st September 1973.
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DCEC000162/1973 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION WORKMEN'S COMPENSATION CASE NO. 162 OF 1973. -----------------
Coram: D.A. Davies, D.J. in Court. Date of Judgment: 11 March 1974. ----------------- JUDGMENT ----------------- 1. This Application has been brought as a result of the death of a Mr. WONG Wing-cheung, who was an employee of the Respondent company, and who was the victim of a fatal accident during the course of his employment on 1st September 1973. 2. The Court is informed by the solicitors for the Respondents that all aspects of liability are admitted, save in so far as the Respondents now put the Applicant, and those persons whom he represents, to proof of dependancy upon the deceased man. 3. The Applicant herein is Mr. WONG Cho-nam, the 67 years-old father of the deceased, who was 29 years old at the date of his death. 4. In the Application he is claiming to have been wholly dependant on the deceased. The only other person listed in the Application as a claimant is his daughter. (the deceased's sister) who is stated to have been a partial dependant. 5. The Applicant and his elder daughter both gave evidence at the hearing, and certain undisputed facts emerge from that evidence. 6. The deceased man, a 29 year-old bachelor lived with his father and two sisters, aged 27 years and 19 years old respectively. 7. The father, aged and suffering from rheumatism, has no job, and no private source of income. The only two wage earners in the family were the deceased and his elder sister, he is also unmarried. The younger sister does the household chores during the day hours, and attends evening classes to further her education. 8. The evidence of both witnesses is to the effect that the deceased earned $560 per month, and his elder sister Miss WONG Yuk-ling $470 per month. 9. On certain other matters of substance, there has been a conflict of evidence between the Applicant and his daughter. I have to say, with some regret, that I did not consider the Applicant to be a very reliable witness. Miss WONG Yuk-ling on the other hand, impressed me as being highly credible, and in all matters in which a conflict emerges, I propose to accept her evidence rather than that of her father. 10. Proceeding on this basis, I find as a fact that the deceased contributed $400 per month to the family fund, and Miss Wong senior contributed $235 to the family fund, as at the date of deceased's death. 11. I accept that the Applicant himself was not, and is not, earning any income, and the same applies to the younger sister of deceased, Miss WONG Yuk-chun. 12. These findings per se dispose of any claim by the Applicant to be totally dependant upon the deceased, though, as Mr. Tang (Counsel for the Respondents) concedes, there is abundant evidence of partial dependancy. 13. The principles, if any, which govern assessment of compensation in cases of partial dependancy, are, to say the least, obscure. There are very few modern local authorities available. 14. A clear, though far from comprehensive, pronouncement is to be found in the judgment of Mc Mullin D.J. (as he then was), in Lam Ha and others and Lam Ka Kee (1964 DCLR 287). I respectfully agree with, and intend to follow, the views expressed therein. 15. To set out my own summary of those which are applicable to the present case:-
In Wong Wing and Wing Hong Construction Co. (1966 D.C.L.R. 38) Springall D.J. originally made an award of compensation to certain individual partial dependants. He later reviewed this decision, and substituted therefor an award to such persons as he found to be partial dependants as a class. In his judgment upon the review, he affirmed all the principles enunciated in the Lam Ha case. It is interesting to note also that the total compensation assessed and awarded by Judge Springall to the class of partial dependants was the maximum that could have been awarded on a total dependancy under Section 6(a) of the Ordinance. 16. A number of cases were considered in the Wong Wing Judgment, and no doubt there are many other authorities as at that date and since which may be relevant to the issues now before me. I do not propose to discuss them, however, because the principles upon which I should proceed are reasonably clear. 17. Firstly, I accept that the "injury" to the class of dependants in the present case is the amount of the deceased's contribution to the family fund, less the amount which it cost the fund to maintain him. (In this connection, I should perhaps add at this point that the "class of dependants" to which I refer consists of Applicant and his younger daughter only. The elder daughter is not a dependant, even partial, because she earned enough to support herself and make a contribution to the family fund which is in excess of her demands on that fund). 18. Counsel for the Respondents, Mr. Tang, has submitted that the deceased's nett contribution to the family fund was around $200 per month, since of the gross $400 per month which he contributed his consumption in the form of food etc., could be expected to amount to $200 per month. Though I have no specific evidence on this point, it seems to me, with respect to Mr. Tang that he was set the figure of the deceased's liability to the family fund too high. With four members of a family eating together, it seems to me that as at 1st September last year, with reasonable economy, it is unlikely that each member's food would cost more than $150 per month. 19. I therefore find that the deceased persons nett contribution to the family fund was $250 per month. 20. It has been submitted to me that in view of the evidence that the deceased himself and his father, both realized that at 29 years it was time for the deceased to consider matrimony. it is possible that he might have got married in due course (though at the time of death he had no girl-friend), and possibly his contribution might have decreased. 21. This, however, I regard as pure speculation. I would add a matter which has not been raised, namely the possibility that with the increase likely in wages over the next few years, and the almost inevitable rise in the cost of living (already apparent during the past seven months since the death of the deceased), the size of his contribution might have increased. 22. In my view, both speculations cancel each other out and should be disregarded and for the purposes of commutation, I will retain the figure of $250 per month as the injury to the class of dependants as at present constituted. 23. Secondly, I must decide what multiple to apply to that sum. 24. Mr. Tang has submitted that I should apply the principle often propounded in Fatal Accidents cases, and grant the dependants so many years of purchase. He suggests that in the present case a 5-year purchase would be fair and reasonable. While this idea is attractive, for its simplicity if for no other reason, I am with respect, convinced that it is not the correct approach. 25. I believe that, whilst still regarding multiple dependants as a class the injury to them as a class can only be assessed by reference to the individuals in that class. 26. As I earlier remarked, the present class consists of Applicant and his younger daughter. Applicant himself is 67 years, and from his own evidence and that of his elder daughter, it appears unlikely that he will engage in gainful employment for the remainder of his life time. 27. As to the younger daughter, however, at most she cannot expect to continue her schooling for more than another 4 years. By then she will be 23 years old. It is only reasonable to assume that after that she too will be a salary earner, and independant like her sister. 28. When that point in time is reached, not only will be class of dependants be decreased by 50% by reason that Miss WONG Yuk-chun becomes no longer a dependant, but her salary will be available for contribution to the family fund. Had the deceased been alive when this event occurred, it seems almost certain that his contribution to the fund would have decreased. It is impossible to be categoric concerning the amount by which he would have reduced it, but I am prepared to assume that it would be in the region of a 50% reduction. This from that point onwards - i.e. after 4 years from now, I would assess the deceased's nett contribution to the family fund as reduced from $250 per month to $125 per month. 29. Thenceforth, the measure of the "injury" to the remaining dependant, (Applicant), would be $125 per month. 30. I can, I think, safely assume that the deceased would have continued supporting his father until the latter's death. To assess this length of time is far too delicate a matter, so I will merely arbitrarily set an age of 75 years as an average life expectancy. Applicant is now 67 years, and his compensation will be awarded on a basis of the next 8 years. 31. Accordingly, without I hope being too conservative on the one hand, or over-generous on the other, I award to Applicant has himself and the other defendant a lump sum based upon $250 per month for the next 4 years, totalling $12,000.00, and $125.00 for the 4 years thereafter, totalling $6,000.00, the grand total being $18,000.00. 32. The costs of this Application are to be Applicant's costs, the quantum of which I reserve until I have been addressed thereon. 33. In open court this 12.3.74.
Certified true copy:-
Representation: Applicant in person R. Tang, instructed by Lau & Lo, for Respondents. |