Chung Yi Yuen v. Lau Koon Shing and Another

CACV 46/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 46 OF 1999

(ON APPEAL FROM HCPI NO. 516/97)

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an appeal from an order made by His Honour Judge Jackson (sitting as a deputy judge of the Court of First Instance) on 26 January 1999 in an action launched by the brother of a deceased person, Zhong Yizhou, who died in a traffic accident in Hong Kong on 16 May 1995. The brother, in whose name the action is brought, holds a power of attorney from the wife, the mother, the sons and the daughter of the deceased. That power of attorney authorises the brother to represent what I may conveniently call "the family" in claiming damages from the person responsible for the traffic accident or from the vehicle owner. The power of attorney declares that, in handling the above matters on the family's behalf, the attorney is authorised to attend court hearings, to answer the suit, to plead, to withdraw the suit, to reconcile, to appoint solicitor(s), barrister(s) and accountant(s) and to pay for all the expenses the attorney may think appropriate. It further provides that all legal actions taken and documents signed by the attorney in respect of the handling of the above matters should be recognised by the family.

2. The brother has been advised that, in these circumstances, he is entitled to maintain this action for damages both under the Fatal Accidents Ordinance, Cap. 22, on behalf of the dependants of the deceased, and under the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, on behalf of the estate of the deceased. Although at one stage it appeared the defendants to the action were prepared to go along with this, the action subsequently ran into the sand, for the point was taken that, since the brother was not the administrator of the deceased's estate, it was not properly constituted. That point having succeeded below, the brother now appeals.

The claim under the Fatal Accidents Ordinance

3. So far as the Fatal Accidents Ordinance is concerned, it is provided by section 5 of that Ordinance, under the rubric "5. Persons entitled to bring the action" that an action under the Ordinance shall be brought by and in the name of the executor or administrator of the deceased : see section 5(1). It is further provided, by sub-section (2), that :

"If -

(a) there is no executor or administrator of the deceased; or

(b) no action is brought within 6 months after the death by and in the name of an executor or administrator of the deceased,

the action may be brought by and in the name of all or any of the persons for whose benefit an executor or administrator could have brought it." (Emphasis added.)

4. The brother is not an executor or administrator of the deceased (although we are told he has applied for a grant of administration to the estate of the deceased). Nor is the action brought by or in the name of all or any of the persons for whose benefit an executor or administrator could have brought it: the action is brought solely in the name of the brother.

5. In these circumstances, as it seems to me, the brother has failed to bring himself within section 5, and the court below was right to refuse at this stage to entertain the further prosecution of the claim under the Fatal Accidents Ordinance.

The Law Amendment and Reform (Consolidation) Ordinance

6. So far as the Law Amendment and Reform (Consolidation) Ordinance claim is concerned, this is a claim on behalf of the estate of the deceased. It is argued on behalf of the brother that the action is properly constituted in the name of the brother under Order 15 rule 6A of the Rules of the High Court, sub-rule (3) of which provides (so far as is material) as follows :-

"(3) An action purporting to have been commenced by ... a person shall be treated, if he was dead at its commencement and the cause of action survives, as having been commenced by his estate ... whether or not a grant of probate or administration was made before its commencement."

7. In such a case, sub-rule (4) provides for an order to be made appointing a person to represent the deceased's estate, and for an order for the proceedings to be carried on by the person so appointed. But the first question to be considered is whether the action is an action within sub-rule (3).

8. As it seems to me, this action clearly is not. This action does not purport to have been commenced by the deceased. It purports to have been commenced by the brother. Accordingly, sub-rule (3) does not apply, for the brother was not dead at the commencement of the action and no cause of action survives in him. Only when a person dies, and after the date of his death an action is commenced in his name, do the provisions of sub-rule (3) come into operation. This is not that case. Accordingly I have no doubt, unfortunate though it may be, that the court below was again right.

Conclusion

9. I would accordingly dismiss this appeal.

Rogers, J.A. :

10. I agree and there is nothing that I can usefully add.

Godfrey, J.A. :

11. The appeal will be dismissed with costs. There will be an order for a separate taxation of the appellant's costs for the purposes of the Regulations made under the Legal Aid Ordinance, Cap. 91.