Wong Shuk Suen v. Chan Wai Ming t/a Wai Ming Transportation

1987, No.116
(E.C.C.)

Employees Compensation

Applicants reside in China. Problems in proving dependancy.

Held father 50% dependent and failure by daughter and her husband to establish any dependancy.

Assessment of compensation. Facts considered:

(a) Level of maintenance paid prior to death.

(b) Selection of a monthly "multiplier" with sparse evidence by applicant and without benefit of expert witness or actuarial tables.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

EMPLOYEES' COMPENSATION CASE NO. 116 OF 1987

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IN THE MATTER OF AN APPLICATION BETWEEN:

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Coram: H.H. Judge Caird in Court

Date of hearing: 6th August, 1987

Date of de1ivery of decision: 19th August, 1987

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DECISION

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BACKGROUND

1.The Applicant was father of WONG Chi-kin, deceased, who met his death as a result of an accident on the 25th of August, 1985. Liability was not contested and judgment for the Applicant in respect of liability was entered by His Honour Judge Henry Wong on the 13th of May last.

2. Application is made in respect of the Applicant (deceased's father) for compensation based on the allegation that the father was wholly dependant upon the deceased, further that the deceased's sister and her husband were partially dependant.

3. The basis of the Applicant's claim is section 6(1)(a) of the Employees Compensation Ordinance Cap.282 Applicant was under 40 years of age i.e. 26 and the aggregate sum of 84 months earnings is claimed. It was clear, indeed not in dispute, that the Applicant was earning $2,400 per month at the time of the accident; accordingly the total sum claimed is $201,600. Before discussing the evidence I refer to section 6(4) of Cap. 282 which reads as follows:

"Where death results from the injury if the employee does not leave any dependants wholly dependant on his earnings but leaves dependants in part so dependant, the amount of compensation shall be such sum not exceeding in any case the amount payable under sub-section 1, 2 and 3 as may be determined by the Court to be reasonable and proportionate to the injury to the said dependants."

THE CLAIM

4. Surprisingly I have been unable to locate any Hong Kong authority relation to the method of assessing compensation in respect of partial dependency when death has occurred. Nor have counsel referred me to any authority bearing on this issue.

5. There are, unfortunately, aspects about the evidence which cause me concern. This is what is commonly termed a "China'.' case with the Director of Legal Aid encountering difficulties in obtaining evidence. Notice pursuant to section 47 of the Evidence Ordinance and Order 38 of the Rules of Supreme Court was given. In the instant case there was no counter notice requiring witnesses to attend for cross-examination.

6. The important documents are (1) Certificate of relationship by a notary public, Mr. Raymond Tse does not contest the facts dealt with on the first page of the certificate and he accepts the relationship of WONG Chi-kin as father and WONG Fung-ming the elder blood sister of the deceased, further that WONG Kau is the elder brother-in-law of the deceased. What he does challenge however is the allegation at page 2 (of the translation) that the deceased was responsible for all the living and medical expenses of his father and part of the family expenses for WONG Fung-ming and WONG Kau.

7. Further there is a letter of authorization, authorising Mr. LAM Fong to act, and finally the most important document - i.e. a declaration by WONG Suk-suen, father of deceased. He claims to be senile and weak suffering from acute stomach disease and that he had completely lost his working capacity. Further that he has no income and that his son the deceased was responsible for all his living expenses and medical expenses and that he requires about RMB one hundred each month. During recent years before his son was involved in the accident he received $300 per month on average and further in 1983 $30,000 was given to him to build a house. Further a Hitachi colour TV set and a Mitsubishi fan were given that to him during that year and in 1984 $20,000 was contributed for the "building of house". That year a 12" Mitsubishi electric fan, clothes, food and medicine were also given to him. He alleges that $1,000 was given to his daughter each year to support her family. It is also stated that the daughter and son-in-law engaged in farming earning an income of $2,000 per year. He lives with his daughter and incurs monthly living expenses about RMB450.

8. The first observation I wish to make is that the document as hearsay and as far as the daughter is concerned it may, indeed is likely, to be hearsay based upon hearsay. Both the daughter and her husband are working and I find that the daughter has failed to meet the balance of probabilities to adduce sufficient probative relevant and admissible evidence to make out her claim for compensation.

9. I further believe that the father living with the daughter is to some extent dependant upon the daughter and that accordingly he is only a partial dependant as far as the deceased was concerned. Again money has been provided for the building of a home. There is no further obligation proven for the provision of accommodation. I assess his partial dependency to be 50% of total.

THE LAW

10. An award is to be made on the basis that it is “……. reasonable and proportionate to the injury .……”

11. This concept was discussed in Main Colliery Company v. Davies,[1] where Lord Halsbury stated:

“Mr. Lords, I am unable to see that there is anything in this case beyond a mere question of fact. I decline to assume that the Legislature has contemplated a particular "standard"- I am not quite certain what it means, but I am quite certain that no human intellect would be able to ascertain exactly what the standard was if one had to deal with such a question - standard dependent upon what was the ordinary course of expenditure in the neighbourhood and in the class in which the man lived. To my mind that is a problem so extremely obscure that I cannot believe that the Legislature intended it to be solved. What the family was in fact spending, for the purpose of its maintenance as a family seems to me to be the only thing which the county court judge could properly regard.”

12. Lord Davey at page 363 concurred:

"Observe, my Lords the county court judge says, "as a part of their income or means of living," by which I understand him to mean their actual income or means of living. I agree with my noble and learned friend on the Woolsack that that is a much more satisfactory way of construing this Act - to look at their actual income and actual expenditure rather than to introduce some vague and undertain standard which it is impossible to lay down with precision."

13. At page 364 Lord Shamd reasoned as follows:

"It has been argued that if the father were well off, for example, it could not then be shewn that he was "party dependent" upon his son. With deference, I am of opinion that that argument is sound. I think that in such a case there must be some standard taken in considering questions of this kind. I do not think you are to look at the mere question, "Did the father use the money?" "Did he spend the money?" and if so, say that he having received, used, and spent the money, it follows that there was a partial dependency. A man might receive the money and use and spend it without being in any degree dependent upon the earnings of his son."

14. Dispute the clear message despatched in that case Lord Macnaughten in a later case was obliged to state.

"The question of dependency is not a question of law at all. It is purely a question of fact. If authority is wanted for a proposition so self-evident, there is the case of Main Colliery Co. v. Davies¹, a decision of this House in which there is an explicit statement to that effect. The view of the Court of Appeal seems to base on a misconception of Lord Halsbury's judgment in that case. Nothing could be plainter than his Lordship's language: "What the family was, in fact, earning, what the family was, in fact, spending, for the purpose of its maintenance as a family, seems to me," says his Lordship, "to be the only thing which the county court judge could properly regard."

15. Hodgson v. West Stanley Colliery (e).

16. The authorities make it clear that the maximum compensation in cases of partial dependency is identical to that which may be claimed in cases of total dependency. Accordingly it is obvious that the Legislation is providing for compensation.

CONCLUSIONS

17. I should consider inter alia the age and health of the applicant. The amount provided by the deceased in direct payments for maintenance, together with "extras" reasonably provided.

18. Accordingly I arrive at $300 per month to be the base figure as having been established as direct payments effected, when deceased was alive and contributed. I allow $150 per month for "extras" in the form of clothes food and medicine, and a further $60 for "luxury extras" e.g. articles such as electric fans.

19. I disregard payments for housing as they are in my view in the nature of gifts and not maintenance. I also put the provision of TV into this category.

The monthly total allowed is Maintenance	$300
"Extras"	$150
"Luxury extras"	$ 60
	$510

20. I believe 54 months to be the maximun period the defendant should reasonably contribute for maintenance. Indeed this represents the absolute maximum and I may well be overly generous in this regard. This takes into account what I know and may infer about applicant's age and state of health - matters which bear upon his life expectancy.

21. The choice of a term is I acknowledge completely arbitrary. I have not had available any expert evidence or actuarial tables bearing on this issue, and have had to rely upon experience and common sense.

Accordingly compensation "reasonably proportionate to the injury" is assessed at 54 x $510 = $27,540.

2. Applicant to receive interest at $6 % from date of service of application.

3. Applicant to have costs to be assessed in accordance with Legal Aid Regulations, District Court, Upper Scale.

4. Applicant's own costs to be taxed in accordance with Legal Aid regulations.

5. Monies to be paid into Court and to be paid to applicant as a lump sum through Director of Legal Aid, subject to his statutory charge.

[1]  [1900] A.C. p.358

(e) [1910] AC p.229