MAK CHAN HING v. WONG KWOK WAH t/a PENG CHING CO AND ANOTHER

DCEC 840/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 840 OF 2014

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ASSESSMENT OF COMPENSATION

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1.  This is an employees’ compensation assessment arising out of a fatal accident that occurred on 28 August 2012.

2.  The 1^st and 2^nd respondents did not enter an appearance in the present proceedings.  Hence, interlocutory judgment was entered against them on 24 October 2014 pursuant to an Order made by HH Judge CM Leung.

3.  At the present hearing, I am only concerned with the assessment of compensation under the Employees’ Compensation Ordinance, Cap. 282 (“the Ordinance”). 

BACKGROUND

4.  The deceased, Mak Shing Kau, was a young man of only 23 at the time when he met with the fatal accident. He was a scaffolder by trade.  On the day of the accident, ie 28 August 2012, he was constructing a scaffolding at a residential unit situated on 60^th floor of Tower 3, Sorrento, 1 Austin Road West, Kowloon when he unfortunately fell to his death (“the Accident”).  The 1^st respondent was the alleged employer of the deceased while the 2^nd respondent was the principal contractor for the work.

5.  At the outset of this hearing, I was informed by counsel that the Employees’ Compensation Assistance Fund Board (“the Board”) had been notified of the present proceedings but the solicitors representing the Board have not expressed any interest to appear at the assessment hearing.

DISCUSSION

6.  This is a relatively straightforward assessment of compensation, save from 2 minor issues which may warrant more detailed discussion.   Those 2 issues are:-

(1) whether a meal after the funeral for the mourners (「解穢酒」) is recoverable in an employees’ compensation case (as contrast to a common law case);

(2) whether donation by a charity to the family of the deceased should be deducted from the funeral expenses in an employees’ compensation case.

7.  I should first deal with the compensation under section 6(1)(a) and then to deal with the funeral expenses, including the above two issues, under section 6(5) of the Ordinance.

Section 6(1)(a) - Compensation

8.  The deceased was born on 19 May 1989.  At the time of the Accident, he was 23 years old only. 

9.  Section 6(1)(a) provides at follows:-

“6(1) Where death results from the injury, then, subject to section 6A, the amount of compensation payable to the members of the family of the employee shall be -

(a) in the case of an employee under 40 years of age at the time of the accident, a lump sum equal to 84 months’ earnings or 84 times the amount specified in the second column of the Sixth Schedule shown opposite section 6(1)(a) specified in the first column of that Schedule, whichever is the less.”

10.  At the time of the Accident, the statutory maximum under section 6(1)(a), as specified in the Sixth Schedule of the Ordinance, was at $23,580. 

11.  In the Amended Application, it has been pleaded that the daily wages of the deceased was at $650.  This is supported by the evidence of his friend Wong Wai Man (AW2) who produced a whatsapp message sent by the deceased to him about 4 months before the Accident.  In the message, the deceased mentioned the recent increase of his wages.  It was further confirmed by Wong in Court that, in about July 2012, which was about a month before the Accident, the deceased had informed him that his wages had been increased to $650 per day

12.  The increase in the deceased’s daily wages is further supported by the evidence from his former colleague Mr Lau Kwun Him (AW3) who was working for the 1^st respondent as a scaffolder.  Even though Lau had left his employment with the 1^st respondent about a month prior to the Accident, he is able to confirm that, when he left the 1^st respondent, his own daily wages was at $700 while the deceased’s daily wage was at $600.  However, shortly after Lau had left the 1^st respondent, he was told by the deceased that his daily wage was increased by the 1^st respondent to $650.  Lau confirmed that they were able to work on average around 26 days a month.

13.  In my judgment, both AW2 and AW3 are honest and truthful witnesses and I have no reason to doubt their evidence.  I accept their evidence entirely.

14.  Hence, the compensation pursuant to section 6(1)(a) of the Ordinance in this case will be as follows:-

     $650 x 26 x 84 = $1,419,600.

Section 6(5) - Funeral expenses

15.  Section 6(5) provides:-

“Where death results from the injury, reimbursement of the reasonable expenses of the funeral of the deceased employee and the reasonable expenses of medical attendance on the deceased employee, not exceeding in all the sum of the amount specified in the second column of the Sixth Schedule shown opposite section 6(5) specified in the first column of that Schedule, shall be paid by the employer to any person who has paid the expenses.” [emphasis added]

16.  At the time of the Accident, the statutory maximum for funeral expenses under section 6(5) of the Ordinance, as specified under the Sixth Schedule, was at HK$70,000. 

17.  The Court of Appeal in the case of Wong Sau Wah & Anor (Administrators of the Estate of Chui Yau Hang, deceased) v Leung Kam Cheuk & Anor [1982] HKC 333, held that, in a common law action, the cost of mourners’ dinner after a funeral is not recoverable.  The Court of Appeal referred to a judgment of Huggins J (as he then was) in the case of Wong Kam-ying & Another (Administrices of the Estate of Man Hung Pun alias Man Pun deceased) v Man Chi-tai [1967] HKLR 201 where the learned judge briefly stated at 208 the following:-

“Nevertheless, it seems to me that the burial of the dead with due ceremony is one thing and the entertainment of those who come to pay their respects is another.”

For that reason, the learned judge disallowed the cost of the mourners’ dinners.

18.  The Court of Appeal in Wong Sau Wah, supra (comprised of Huggins V-P, Yang & Barker JJA) agreed with Huggins J in the earlier case and held that the judge was right to disallow the item.  The rationale behind the decision is that having dinners with friends and relatives were quite separate and distinct from what was required to dispose of the deceased’s mortal remains with customary ceremonies, even though they may have been customary hospitality on such an occasion.  The learned Vice President Huggins stated in that case that a line must be drawn somewhere and the courts should endeavour to restrict the expenses which are encompassed within the phrase “funeral expenses”: see p 337 H-I of Wong Sau Wah, supra.

19.  I take it that the learned Vice President had in mind the test of both reasonableness and necessity when making that comment.

20.  As a result of those two cases, it is now settled law that, at least in a common law action, the cost of meals for mourners are not recoverable as part of the funeral expenses even though they are customary for family of the deceased to provide them.

21.  In Lau Tak Lung v Ngan Guen Min & Anor [1998] 2 HKC 75, Deputy Judge Wesley Wong, again in the context of a common law action under the Fatal Accidents Ordinance (Cap 22), stated that expenses of burial ceremonies were recoverable if it was reasonable in all the circumstances to hold the ceremonies.  The status, the financial position of the deceased and of his family and also their religious belief had to be considered.  On balance, the ceremony performed must have accorded with customary rites and religion of the descendants of the deceased and thus the expenses, apart from several small items, were held to be reasonable in the circumstances.  The case of Wong Sau Wah was followed and the case of Wong Kam Ying was considered in that case. 

22.  Mr CK Wong, counsel for the applicant, noted that the learned deputy judge in Lau Tak Lung, has quoted Huggins J (as he then was) in Wong Kam Ying at p 207 where he mentioned that funeral expenses are “no easy matter” and he thought “where questions of custom and good taste are concerned the court must take a generous view”.  In that case, the deputy judge disallowed the food expenses of $1,000, for the reason that it was not pleaded nor was any receipt given.  Mr Wong submits that it was not based on the same reasoning as the Court of Appeal had provided in Wong Sau Wah back in 1982.

23.  Section 6(5) of the Ordinance provides reimbursement for “reasonable expenses” of the funeral of the deceased employee.  It has not defined what “reasonable expenses” means.  Mr Wong submits that the Court should take a liberal and generous approach in construing section 6(5) and allows at least one mourners’ meal at the time of funeral or shortly after the funeral.

24.  With respect, I cannot agree with such submissions.  Although the cases referred to above are decided in the common law context, in my judgment, the same test of reasonableness and necessity must apply. 

25.  In the UK case of Jones v Royal Devon & Exeter NHS Foundation Trust [2008] EWHC 558 QB, a sum of £2,000 was allowed by the Court for a specially commissioned headstone for a child who died shortly after birth.  However, the cost of the wake which is also claimed by the plaintiff was disallowed.  See also McGregor on Damages 19^th edition para 79-022 where the learned author of the leading text commented that even though no definition of funeral expenses was given under the Fatal Accidents Act 1976, it is accepted that the test of reasonableness seems to apply. 

26.  Given the words “reasonable expenses” have specifically been used in section 6(5), I think the same test must apply.

27.  In my judgment, the problem with granting the cost of a mourners’ meal as part of the funeral expenses is that it is difficult to decide what would be regarded as reasonable or not reasonable.  Further, even though it might be customary in the local culture to have a meal immediately after the funeral ceremony or the burial with the mourners, I think it is difficult to argue that the meal will form a necessary part of the funeral and therefore as a result should be treated as part of the funeral expenses.

28.  In the circumstances, I am afraid that I cannot accede to the submission that the mourners’ meals should form part of the funeral expenses under section 6(5) of the Ordinance.

Donations by charity

29.  The applicant’s family admitted that they had received donations from the Tung Wah Group of Hospitals to meet their dire financial needs immediately after the Accident.  In fact, the receipt included in the assessment bundle shows that there was a total sum of $22,000 donated by the charity of which $10,000 was spent directly on the funeral expenses.

30.  The issue here is whether donation from a third party should be deducted from the funeral expenses in an employees’ compensation case.  In Pang Luk Ngoi & Anor v Lee Kwong Hing [1984] HKC 449, Kempster J (as he then was) referred to the different provisions of the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance and held, in the context of a common law case, that:-

“I am unable to think that by this different in wording the legislature intended that the plaintiffs should be entitled to recover damages for funeral expenses which they had not incurred by claiming under the Law Reform rather than under the Fatal Accidents Ordinance. I do, however, observe a possible paradox here because had the charitably-minded subscribers instead of paying the funeral expenses themselves passed round the hat and handed the widow a cheque from which she had herself discharged the funeral bill the cost would have been recoverable beyond peradventure.”

31.  In Leung Tsang Hung & Anor v Tsang Yiu Pui & Anor HCPI 595/2002, the plaintiff claimed funeral expenses in the amount of $88,250.  The amount was not seriously disputed save that the defence argued the amount claimed should be set off against donations received from the hawkers in Tung Choi Street where the deceased was a hawker.  There was in the form of condolence and or contribution to the funeral expenses of the deceased family.  Deputy Judge To (as he then was) did not think this was right.  According to the learned judge, it would make a mockery of the generosity of the donors if the effect of the donations to fund or to indemnify the wrongdoer in his wrongful act and not to provide relief to those who are in distress.  The learned Judge allowed the claim for the funeral expenses in full. 

32.  I entirely agree with both the reasoning and the ruling made by the 2 learned judges in the above mentioned cases.  Further, as there is no authority to suggest that any “mourners’ money” (「帛金」) received in the funeral of a deceased person by the family should be deducted from the funeral expenses, I see no reason why any donations made by a charity should be deducted from the funeral expenses.  In my judgment, this should be so in a common law case as in an employees’ compensation case.  If the Court allows such deductions, it will only benefit the employers or their insurers but at the expense of the persons who make the donations and those who need the money most.

33.  In the premises, I am of the opinion that there should be no deduction from the donations made by the Tung Wah Group of Hospitals resulting from the Accident.

34.  In conclusion, based on my findings above, I would allow a sum of $37,381 [($47,148 total alleged funeral expenses incurred by family (including $10,000 donated by Tung Wah Group of Hospitals as part payment of funeral expenses) - $9,767 (total meals consumed by mourners)] as compensation for funeral expenses under section 6(5) in this case.

CONCLUSION

35.  In the abovestated premises, the total amount of compensation to be awarded in this case under the Ordinance should be at $1,419,600 + $37,381 = $1,456,981.  I therefore would enter judgment against the 1^st and 2^nd respondents in that sum accordingly.

36.  On top of the compensation, the applicant is also entitled to interest.  I shall award interest on the above sum at half of the judgment rate from date of the Accident to date of judgment and thereafter at judgment rate until payment.

37.  Further, the applicant is entitled to the costs of the assessment.  I order that the costs of the assessment to be paid to the applicant by the respondents on a party and party basis, such costs to be taxed if not agreed with certificate for counsel.  The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

38.  Lastly, I would like to thank counsel for his assistance.