WONG TAI TAI v. TO CHI MING AND ANOTHER

DCEC1409/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1409 OF 2006

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J U D G M E N T

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1.  This is a fatal Employees’ Compensation case.

2.  On 2 March 2007, Her Honour Judge Marlene Ng had entered judgment on liability against the respondents herein.  The only outstanding issue to be decided by this Court is therefore the amount of compensation payable to the eligible members of the family.

3.  Deceased was survivedby his lawful wife and three children.  Deceased was a shipmaster.  And at the time of accident, he was aged 51. 

4.  Under section 6(1)(B) of the Employees’ Compensation Ordinance, the amount of compensation payable to the members of the family of the employee shall be 60 months’ earnings or 60 times the amount in the second column of the said fixed schedule, opposite section 6(1)(B) specified in the first column of the schedule, whichever is less.

5.  It was submitted at the time of accident the deceased was working with Chi Chuen Tugboat, earning an average of $13,000 per month.  He was also working part-time for the respondents herein. 

6.  On the evidence before this Court, I find as a fact that the deceased did work a total of three times for the respondents as submitted by the counsel for the Applicant, as I prefer the evidence of the witness as opposed to that of his wife for reasons as submitted.

7.  The applicant said that the 1st respondent paid her $2,000 for the two days’ wages done by the deceased prior to his death.  I infer therefore that on each of these occasions when the deceased worked for the respondents, it would be for a period of two days at a daily wage of $1,000, which makes it $2,000 in total for each of the occasions that the deceased worked for the respondents.

8.  Now, both the applicant and the witness had no idea as to the timeframe within which the deceased performed the three duties for the respondents. 

9.  In the circumstances, I find it reasonable to accept as a fact that the earnings of the deceased in the month prior to the accident deriving from his working for the respondents where the income arising from two occasions, which is $2,000 each, i.e. $4,000 in total, making the average monthly income from his work with the respondents prior to his death as being $4,000.

10.  Accordingly, the average total monthly earnings of the deceased at time of accident was found to be the total of $13,000 plus $4,000 which makes a total of $17,000.

11.  As for funeral expenses, this Court accepted the evidence of the applicant that she spent a total of $33,901 for this purpose as the same is less than the upper limit of $35,000, the Court will award this sum in full.

12.  The amount of compensation that this Court ajudged that the respondents shall pay the applicant is therefore:

(a)	a total sum of $1,053,901, being the aggregate sum of the $1,020,000 ($17,000 per month times 60) and $33,901;
(b)	interest on the aforesaid sum of $1,053,901 from the date of application till date of judgment at half judgment rate and thereafter at judgment rate until date of satisfaction

13.  As for the apportionment of the compensation, the applicant shall be entitled to the total of the $33,901 which is the funeral expenses, and $510,000, which is 50 per cent of the $1,020,000, making the total compensation payable to her as $543,901. 

14.  As for the other three children, each of the three children is entitled to one-third of the 50% of the said sum of $1,020,000, accordingly, each child shall be entitled to the sum of $170,000.

15.  As for costs, it is ordered nisi that the respondents shall pay the applicant’s costs as from 3 March 2007 up till today and including today, the same to be taxed if not agreed.  The applicant’s own costs to be taxed in accordance with Legal Aid Regulations.  This order nisi shall be made absolute on the expiration of 14 days.