Lee Chung-ho v. Hongkong United Dockyards Ltd

DCEC000007/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 7 OF 1980

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Coram: A.L. Leathlean, D.J.

Date of Judgment: 4th September, 1980

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JUDGMENT

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1. The only issue in this case is whether the deceased workman's father was dependent upon him at the date of his death, and if so to what extent.

2. The father says that he is giving $100 pocket money and $300 a month for food to his mother. He maintains that he told the social worker that he was giving his mother $100 a month pocket money as well as money for food. The social worker has not been called. His report is not evidence. This evidence has been challenged, albeit not very vigorously, but not in my view with respect to any really useful purpose. The father made no bones about his two younger brothers, one of whom is a taxi driver and the other of whom is a labourer, also supporting their mother, though not to the same extent as they are both married with families of their own. The respondent has led no evidence. While a contribution of $400 by the father to his mother strikes me as being rather high I do not think that I would be justified in finding that the father's testimony is palpably untrue, and in the absence of any other evidence I think that I must accept it.

3. The father also says that his income consisted of his wages $1,150 and his pension $420 making a total of $1,570. His recurrent monthly expenditure consisted of $400 which he gave to his mother, $208 for luncheon, $300 for travelling and $120 for breakfast, making a total of $1,028. He also contributed $400 a month towards all other household expenses, leaving a balance in hand of $142 which he says he used as pocket money.

4. His son was contributing $600 a month towards the household expenses, which, according to his father, amounted to $1,000 a month for both of them. He says that the value of the food which his son ate at home was $100 a month. I do not accept that. In my view that figure is unrealistic and disproportionately low vis-a-vis the other household expenses. I consider that a more realistic figure for food which was taken at home would be $200 per capita a month, which would mean that the other household expenses would have amounted to $600 a month. Obviously the father's income alone ($1,570) would have sufficed to defray only a maximum of $200 for household expenses other than food in addition to his recurrent monthly outgoings $1,028 plus pocket money $142 plus $200 for food which he consumed at home. I am satisfied, therefore, that the father was partially dependent upon his son at the time of the latter's death.

5. It is clear that the loss to the father is roughly the difference between his son's contribution $600 and the cost of his keep: Kennedy v. Horden Collieries, Ltd.⁽¹⁾, and not, as Miss Lam for the father submits, the amount of the contribution less the value of his food merely. The question is, what was the cost of his keep? There are cases, of which Kennedy v. Horden Collieries, Ltd.⁽¹⁾ is one and WONG Wing v. Wing Hong Construction Co.⁽²⁾ is another, in which the cost of a deceased workman's keep has been calculated by dividing the total family expenditure by the number of family members at the time of the death. In both those cases, as it is in the instant case, it was impossible upon the evidence to say precisely what it did actually cost to keep the deceased workman.

6. In the instant case father and son lived alone together in resettlement accommodation of which the father was the tenant paying $91 a month rent. It is common knowledge that subletting of such accommodation is prohibited, and there is therefore no question of the son's presence depriving his father of income which he might have derived from subletting or taking in lodgers. Should I, therefore, include in the cost of the son's keep a share of the value of his father's resettlement accommodation? In Kennedy v. Horden Collieries, Ltd.⁽¹⁾ the deceased workman's father (with whom the workman resided) was provided with free accommodation and coal. The learned trial judge said (at page 444):

".......... Mr. Heath on behalf of the applicant contends that the value of the house and coal ought to be left out of account altogether, but it is perfectly clear that, when considering how much is required to supply a family with necessaries, you cannot ignore the fact that they are already supplied with two important necessaries - namely, fuel and shelter - .........."

and (at page 446):

"Now the loss to the family is, roughly, the difference between his contribution to the family fund (£110s. 6d.) and the cost of his keep, and for the purposes of this calculation I do not think I ought, as suggested by Mr. Richardson, counsel for the respondents, to include in the cost of his keep a share of the 5s., which is said to be the weekly value of the house and coal. There may be cases in which it would be proper to include something under this head, as, for example, where, in consequence of the son's living at home, the parents are prevented from taking in a lodger, as they would otherwise have done; but I do not think that any ground has been shown for doing so in the present case."

7. I do not think that any ground has been shown in the instant case for including in the cost of the son's keep a share of the value of his father's resettlement accommodation. After all, the father would have had to pay the rent of $91 a month whether or not his son shared the accommodation.

8. It is notorious that, despite the old adage, two cannot live as cheaply as one, and doubtless the household expenses (apart from food) were greater, albeit not much greater, because the son was living with his father than they would have been had his father lived alone. It is impossible to say with anything even remotely approaching accuracy how much greater, but it seems to me that to say that they were greater by $100 a month is not unreasonable. It must be remembered that in the instant case, unlike that of Kennedy v. Horden Collieries, Ltd.⁽¹⁾ the deceased workman's father was not provided with free fuel. I therefore quantify the cost of the son's keep in the sum of $300 a month, being $200 a month the cost of his food plus the $100 which I have just mentioned. In other words, I hold that the loss to the father was $300 a month (the son's contribution $600 less the cost of his keep $300). In capitalizing that sum I have to allow on the on hand for the possibility that the son's contribution might have increased, and on the other hand for the possibility that it might have been withdrawn altogether as, for instance, in consequence of his marriage. He was only 21. His father is 57. Miss Lam has referred me to CHIK SHIU Sheung-man v. LEUNG Wai-hung et al.⁽³⁾ That was an action which sounded in tort. The learned commissioner held that the life expectancy of a woman of 57 in Hong Kong was 15-16 years. For myself, with respect, I feel that that was putting it somewhat high. In any event I doubt whether such cases are of much, if any, real assistance in workmen's compensation cases, in which the maximum compensation in cases of fatal accidents is $60,000. or 36 months' earnings, whichever is less. Taking everything into account, I assess and award compensation in the sum of $10,800. Costs to be the applicant's, to be taxed on the upper scale. Order for payment out in toto to the applicant forthwith. The balance of the award to be paid to the applicant's solicitors within 14 days from the date hereof.

9. Date this 4th day of September, 1980.

Representation:

(1) (1925) 2 K.B. 438 at 446

(2) (1966) D.C.L.R. 38

(1) (1925) 2 K.B. 438

(3) (1979) H.C.A. 3170 (unreported)