Read the full judgment text of HCA 747/1992 on BabelCite. This High Court CFI judgment was delivered on 3 January 1994 before The Hon. Mr Justice Kaplan.
Fatal accidents – claim for bereavement under Fatal Accidents Ordinance Cap. 22 – whether statutory sum is that applicable at date of death or date of trial – Chow Oi Yee v. Chow Kan To not followed – statutory figure of $40,000 at date of death applied, not the increased $70,000 at date of trial – presumption against retrospective legislation. Fatal accidents – definition of dependent under s.2(1)(d) Fatal Accidents Ordinance – whether mother-in-law is an ascendant of the deceased – held no; subsection refers to parents, grandparents or great grandparents of the deceased – if mother-in-law had been a member of the household she would have come within s.2(1)(c) – no claim on behalf of mother-in-law. Loss of accumulation of wealth under s.20(2)(b)(iii) Law Amendment and Reform (Consolidation) Ordinance Cap. 23 – whether in absence of any pattern of savings it is correct to take a notional figure of 10% of earnings – decision of Nazareth J. in Chan Yuk Ying et al v. Chan Cheung Wan not followed – Wong Sai Chuen v. Tam Mei-chun, Wai Kang Kwan v. Wong Wing Kwong, Lee Ching v. Kit Man, and Cheng Yuk Shiu v. The estate of Ma Wai Hoi reviewed and not adopted – critical inquiry is whether wealth would have been in existence at date of natural death, not merely at retirement – section prohibits over-compensation and does not authorise a notional or conventional figure – plaintiff failed to establish any pattern of savings – no award under this head. Construction site accident – unboarded lift shaft at 19th floor of Tsuen Wan construction site – deceased fell to death while collecting refreshments placed on planks covering lift shaft at direction of employer (D3) and with involvement of main contractor (D1)'s tower crane operator – 1st defendant (main contractor/occupier) in breach of statutory duty under Occupiers Liability Ordinance and common law duty of care – 3rd defendant (sub-sub-contractor/employer) in breach of employer's duties – elementary precautions of boarding, fencing, signage, and warnings not taken – no contributory negligence on the part of the deceased as experienced worker. Quantum – earnings assessed at $410 per day with commissions of $2,600 per month – 71% inflationary increase accepted giving pre-trial median of $17,967 and post-trial figure of $22,675 per month – multiplier of 10 awarded for both widow and daughter – widow and daughter each allocated 16.19% and 13.77%/13.71% of earnings respectively – funeral expenses of $30,000 awarded. Apportionment – 70% liability to D1 (occupier) and 30% to D3 (employer) – D1 had control of site and power to prevent such accidents. Total damages $768,848 less Employees Compensation $290,541 = $478,307 – interest at 4.8% on pre-trial losses – costs nisi for plaintiff against D1 and D3 – claim against D2 dismissed.
Legal issues: Whether mother-in-law is a dependent under s.2(1)(d) Fatal Accidents Ordinance · Correct figure for bereavement - date of death or date of trial · Whether notional 10% of earnings is appropriate for loss of accumulation of wealth under s.20(2)(b)(iii) LARCO · Liability of D2 sub-contractor · Apportionment of liability between D1 and D3 · Whether the deceased was contributorily negligent
Outcome: Judgment for the plaintiff against the 1st and 3rd defendants; claim against the 2nd defendant dismissed. Liability apportioned 70% to the 1st defendant and 30% to the 3rd defendant. Total damages of $768,848 awarded, less Employees Compensation of $290,541, net $478,307. No award for accumulation of wealth under s.20(2)(b)(iii) LARCO. No award for mother-in-law. Bereavement assessed at $40,000 (date of death figure). No reduction for contributory negligence.
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