Yang Yee Man, The Administratrix of the Estate of Lam Lok Kin, Deceased v Leung Hing Hung and others (HCPI 443/2010)

This is a fatal injuries action in which the Plaintiff's husband (the 'Deceased') died as a result of a car accident. The Plaintiff, on behalf of the dependants, claims various heads of damages against the Defendants for negligence. The issue in dispute was the claim for loss of dependency pleaded in the statement of damages.

Prior to the accident, both the Plaintiff and the Deceased were engaged in full time employment. They both assumed responsibility of taking care of their infant daughter after work and during the holidays. Following the death of the Deceased, the Plaintiff had the sole burden of taking care of their daughter. The Plaintiff continued to work for some sixteen months after the accident, but had to give up her job eventually when she was diagnosed to be suffering from depression caused by the accident. As part of the claim for loss of services, the Plaintiff claimed for the loss of her earnings and the medical expenses incurred for treatment of her depression.

The principles for the claim for loss of services is summarised in the case Malyon v Plummer [1964] 1 QB 330, which states that:

"If, as a result of the death, a dependant has lost services provided by the deceased, then the monetary cost of replacing those services may be recoverable. If the services were of such a personal nature that they could only be replaced by services of a personal nature such as family member replacing a family member in looking after a young child, then the cost of providing that family member might be quantified not on the basis of what it would cost for a child minder but what it would cost for the only available family member to give up their other employment."

Applying the established principles in this case, the appeal Judge ruled that the value of the services of the Deceased that his daughter lost as a result of his death is a recoverable head of claim, but the damages would only be quantified on the basis of the Deceased's non-working hours.

Accordingly, the Plaintiff would not be entitled to claim for the loss of earnings, as such damages was caused by the fact that she suffered from a depressive order and not a result of loss of service of the Deceased.

As for the claim for medical expenses, it was held that it was not a claim under the 'loss of service' category, as the cause of the Plaintiff's depression stemmed from the accident, and not the loss of service of the Deceased. In the circumstance, the medical expenses were of a personal nature and that it could not be recoverable in the Plaintiff's capacity as a dependant.

Interestingly, the Judge made a comment that the Plaintiff appeared to have a separate claim for damages for nervous shock, depending on whether she could satisfy the test of physical and temporal proximity by establishing that she was close to the accident and to its immediate aftermath in terms of time and space.

Comments

This decision serves as a reminder of the established principles for the statutory claim for loss of dependency under the Fatal Accidents Ordinance. This claim is limited to the loss of benefit in money or money's worth of the service, which would have accrued to the dependant if the deceased had not died as a result of the accident complained of.