[2012] 5 HKLRD 782

Yang Yee Man

and
Leung Hing Hung

(Court of First Instance)

(Personal Injuries Action No 443 of 2010)

Bharwaney J in Chambers
12 October, 7 November 2012
Damages (personal injuries or death) fatal accident loss of dependency
loss of deceaseds services of looking after infant daughter widow
suffered depression after husbands death and gave up job to look after
daughter widows claim for own loss of earnings not recoverable loss
of earnings caused by depression following husbands death and not proper
measure of value of his services which daughter had lost
[Fatal Accidents Ordinance (Cap.22) ]
()

[22 ]
On 31 August 2007, Ps husband, X, was killed in a traffic accident.
P brought proceedings against D, for inter alia loss of dependency
on behalf of Xs dependants. Part G of Ps statement of damages
pleaded that: until the accident, P and X had jointly taken care of
their infant daughter, but after the accident, the services previously
provided by [X] to the daughter had to be, and could only be,
replaced by Ps services (Paragraph 29); due to pressure from the
sudden change in circumstances, P suffered from major depressive
disorder and had been undergoing psychotherapy since January
2009; she had to resign from her job in January 2010 and accordingly
sought her own loss of earnings. The Master struck out Part G for
disclosing no reasonable cause of action and dismissed Ps application
for leave to adduce expert evidence from a clinical psychologist. P
appealed, seeking to amend the loss of earnings claim by pleading
that the stresses of work and assuming both Xs and her own
responsibility for caring for their daughter caused Ps major

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783

depressive disorder to persist and it became necessary to resign to

replace Xs services adequately.
Held, allowing the appeal in part, that:
(1) The statutory claim for loss of dependency under the Fatal
Accidents Ordinance (Cap.22) was limited to the loss of benefit
in money or moneys worth which would have accrued to
the dependant if the deceased had survived. The loss must
arise out of the relationship and could be for services rendered
free or at less than the market rate (Burgess v Florence
Nightingale Hospital for Gentlewomen [1955] 1 QB 349,
Malyon v Plummer [1964] 1 QB 330 applied). (See para.3.)
(2) Here, the value of Xs services that his daughter lost as a result
of his death was a recoverable head of claim and, to that
extent, the appeal must be allowed and Paragraph 29 reinstated
into the pleading. While P continued to work for two years
and four months after the accident, the care she provided to
her daughter after she returned home from work was that to
replace the services X had provided. (See para.5.)
(3) However, the appeal to reinstate Ps claim for loss of earnings
was dismissed. The amended pleading did not cure the original
defect. As pleaded, Ps loss of earnings was caused by a major
depressive disorder following Xs death and, as such, was not
a proper measure of the loss of Xs services to his daughter
(Tsang Mei Ying v Lam Pak Chiu [2000] 1 HKLRD 883
applied). (See para.7.)
(4) P appeared to have a classic claim for damages for nervous
shock, depending on whether or not 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. Given the refusal to reinstate Ps
claim for loss of earnings, her appeal in respect of leave to
adduce expert psychological evidence must also be dismissed.
However, evidence from a psychiatrist or a psychologist to
support claims for damages for nervous shock constituted
expert evidence on liability, even if such evidence would also
invariably be used to support claims on quantum. (See
paras.89.)
Appeal
This was an appeal by the plaintiff-widow of the deceased in a fatal
accident action against the decision of Master Josephine Chow,
dated 13 June 2012, to strike out that part of the statement of
damages claiming inter alia the plaintiff s own loss of earnings for
disclosing no reasonable cause of action and refusal to grant leave

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to adduce expert evidence from a clinical psychologist (see [2012]

HKEC 860). The facts are set out in the judgment.
Mr Osmond Lam, instructed by Zeke Mok & Co, for the plaintiff.
Mr Robin McLeish, instructed by Clyde & Co, for the defendant.
Cases cited in the judgment
Burgess v Florence Nightingale Hospital for Gentlewomen [1955]
1 QB 349, [1955] 2 WLR 533, [1955] 1 All ER 511
Mak Yiu v Chinachem Realty Ltd (unrep., HCA 10335/1998, 17
November 1999)
Malyon v Plummer [1964] 1 QB 330, [1963] 2 WLR 1213, [1963]
2 All ER 344
Tame v New South Wales [2002] HCA 35, (2002) 211 CLR 317,
(2002) 76 ALJR 1348
Tsang Mei Ying v Lam Pak Chiu [2000] 1 HKLRD 883, [2000] 2
HKC 658
Other material mentioned in the judgment
UK Law Commission, Liability for Psychiatric Illness, Law Com
No 249, 10 March 1998, para.6.16
Bharwaney J
1. This is an appeal from the decision of Master Josephine
Chow who ordered that Part G of the plaintiff s statement of
damages filed on 17 November 2010 be struck out on the ground
that it discloses no reasonable cause of action and that the plaintiff s
application for leave to adduce expert evidence from a clinical
psychologist be dismissed. She also made a costs order nisi for costs
to the defendant to be taxed and paid forthwith, if not agreed, with
certificate for counsel. That costs order has since become absolute.
2. The plaintiff s husband died as a result of a road traffic
accident which occurred on 31 August 2007. The plaintiff brought
these proceedings as administratrix of his estate, and on behalf of
the dependants of the deceased. She claimed damages for loss of
dependency on behalf of her daughter and the mother of the
deceased, and on her own behalf as a dependant of the deceased.
In her statement of damages dated 17 November 2010, the plaintiff
advanced claims for damages for pain, suffering and loss of amenities
(PSLA), special damages, including pre-trial loss of dependency,
and damages for post-trial loss of dependency, loss of accumulation
of wealth and bereavement. In section G of the statement of
damages, the plaintiff advanced claims for her own medical expenses
and loss of earnings in a sum in excess of $2.75 million in these
terms:

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Bharwaney J

[2012] 5 HKLRD 782

29.

30.

31.

32.
33.
34.

785

At the time of the Accident, both the Deceased and the

Plaintiff had assumed the responsibility of taking care of the
Daughter (who was then 3 months old). However, after the
Accident, the services previously provided by the Deceased
to the Daughter had to be, and could only be, replaced by
the services of the Plaintiff. The Plaintiff has since then
shouldered the sole burden of taking care of the infant
Daughter.
Nonetheless, in view of the sudden and drastic change of
circumstances in the Plaintiff s family, the Plaintiff was under
enormous pressure that she required psychotherapy treatment
since January 2009.
The Plaintiff was diagnosed of suffering from major
depressive disorder by Registered Clinical Psychologist Dr
Tommy Chan. As a result, the Plaintiff had no alternative
but to resign as Senior Audit Manager from 5 January 2010.
During her employment, she had received a 7% increment
in salary annually. In Dr Tommy Chans opinion, the
Plaintiff had to take a 3-year break before she would be
psychologically fit to return to employment.
In the premises, the Plaintiff claims medical expenses incurred
at the sum of $106,000 for psychotherapy treatment.
The Plaintiff also claims future medical expenses to be
assessed.
Further, it is pleaded that the Plaintiff has incurred loss of
earnings as follows:
Loss of Salary
Year 1

$53,500 x 1.07 x
13

$744,185.00

Year 2

$57,245 x 1.07 x
13

$796,277.95

Year 3

$61,252.15 x 1.07
x 13

$852,017.41

Sub total :

$2,392,480.36

Loss of bonuses
$42,000 (annual bonus) x 3 = $126,000
Loss of MPF contribution by employer
Year 1

782

$2,675 x 1.07 x
12

$34,347.00

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Year 2

$2,862.25 x 1.07
x 12

$36,751.29

Year 3

$3,062.61 x 1.07
x 12

$39,323.91

Sub total :

$110,422.20

Loss of medical benefits

The Plaintiff claims a sum of $20,100 under this
item.

35.

The total loss of earnings is therefore:

$106,000 + $2,392,480.36 + $126,000 + $110,422.20
+ $20,100 = $2,755,002.56

3. The statutory claim for loss of dependency under the Fatal

Accidents Ordinance (Cap.22) is limited to the loss of benefit in
money or moneys worth which would have accrued to the
dependant if the deceased had not died as a result of the tort
complained of. Devlin J, as he then was, stated in Burgess v Florence
Nightingale Hospital for Gentlewomen [1955] 1 QB 349, 357:
I think it is clear that the authorities establish that if the benefit [for
which compensation is sought in a fatal injuries action] arises out
of the relationship it need not be a monetary benefit, but it can be
services rendered which can then be translated into money; if a
relation, out of filial duty or any other motive that arises from the
relationship, renders services to the plaintiff which he gives either
free or at less than the market rate, the loss of those services is
something that can be translated into cash and is recoverable under
[the equivalent provisions of] of Act.
Diplock LJ, as he then was, relied on Devlin Js statement of
principle when he stated in Malyon v Plummer [1964] 1 QB 330,
349:
It has, however, long been established, despite these wide words
[of the equivalent provisions], first: that the pecuniary loss to the
persons for whose benefit the action is brought is the only damage
recoverable and, secondly, that the pecuniary loss recoverable
is limited to the loss of a benefit in money or moneys worth which,
if the deceased had survived, would have accrued to a person within
the defined relationship to the deceased [ie a dependant as defined],
and would have arisen from that relationship and not otherwise.

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Yang Yee Man v Leung Hing Hung

Bharwaney J

787

4. In Tsang Mei Ying v Lam Pak Chiu [2000] 1 HKLRD 883,

the mother of the deceased, who had previously looked after the
children, could no longer do so because she suffered depression as
a result of the death of her son. As a result, the plaintiff, the wife
of the deceased, found it necessary to give up employment and stay
at home to look after her children. She claimed her loss of earnings
as damages arising from the death of her husband. The Court of
Appeal applied the principles enunciated by Diplock LJ in Malyon
v Plummer and rejected this particular claim. Rogers JA, as he then
was, with whom Ribeiro JA, as he then was, and Godfrey V-P
agreed, said at p.888EJ:
Thus, on a narrow view, it seems to me that the plaintiff s claim
for her loss of income could not be maintained because it is a loss
of her income as a result of her giving up her own work.
Even, if one regarded the matter on a different footing and
considered, as I think might be justifiable, that it was necessary for
the plaintiff to give up her work so that her son would have a
family member rather than a stranger looking after him, the claim
is still not, in my view, recoverable.
Dependency in terms of what is recoverable under the Fatal
Accidents Ordinance can be quantified both in terms of money
and moneys worth, in other words, services. 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. It would be a matter for the court to decide whether
that was reasonable in the circumstances.
So far, there would be no difficulty in quantifying the plaintiff s
claim on that basis. The difficulty, however, arises from the fact
that it was not the deceased that provided the services of looking
after the young child, but his mother.
5. Prior to his death, both the deceased and his wife, the
plaintiff, were in full-time employment and their daughter, who
was born on 7 May 2007, some four months before the death of
the deceased, was cared for by another person during their working
hours. It was pleaded in para.29 of the statement of damages that
after the accident, the services previously provided by the deceased
to the daughter had to be, and could only be, replaced by the
services of the plaintiff. The plaintiff has since then shouldered the
sole burden of taking care of the infant daughter. On her own

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pleaded case, the plaintiff continued to work for two years and four
months after the accident. After the accident, the care that she
provided to her daughter to replace the services provided by the
deceased, was the care that she provided to her daughter after she
had completed work and had returned home from work. Clearly,
the value of the services of the deceased that his daughter lost as a
result of his death is a recoverable head of claim. To that extent,
the appeal must be allowed and para.29 reinstated into the pleading.
In fact, Mr Robin McLeish, who appeared for the defendant,
conceded that para.29 of the statement of damages contained a valid
claim for the loss of services provided by the deceased to his
daughter after he returned home from work. Mr Osmond Lam,
who appeared for the plaintiff, offered to provide particulars of loss
and damage under para.29 of the statement of damages. I have fixed
a CMC to take place before me on 14 December 2012 at 10 am.
Absent consent from the defendant, the plaintiff can apply at that
hearing to amend para.29 of the statement of damages to insert
these particulars.
6. In prosecuting his appeal, Mr Lam accepted that the claim
for medical expenses, pleaded in paras.32 and 33 of Part G, was not
sustainable under a loss of services claim and he did not seek
reinstatement of these paragraphs. However, he submitted that the
loss of earnings claim in Part G should be allowed to stand in an
amended form, as pleaded in the draft revised statement of damages
as follows:
30.

31.

32.

782

The Plaintiff initially attempted to combine her work as a

Senior Audit Manager with her child-minding duties.
However, the Plaintiff was diagnosed by Registered Clinical
Psychologist Dr Tommy Chan as suffering from major
depressive disorder. The stresses of performing job duties
and taking up both the Deceaseds and her own responsibility
in caring for the daughter at the same time caused the
plaintiff s psychological condition to persist.
It became necessary on the recommendation of Dr Tommy
Chan for the plaintiff to take a 3-year break from working
starting on 5 January 2010 in order to replace the services
of the Deceased adequately.
During her previous employment, the Plaintiff received a
7% increment in salary annually. Notwithstanding Dr Chans
advice, as a result of financial pressure, the Plaintiff resumed
work on 28 February 2011 as a Senior Manager at a bank
which she had previously worked for, with a new salary of
HKD54,000 per month. She receives 12 months salary per
year for this employment as against 13 months salary in her
previous job. This employment is less stressful than the last

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33.

Yang Yee Man v Leung Hing Hung

Bharwaney J

789

one and she managed to perform her duties in this job. In

September 2011, she received a salary increase of
HKD55,000 per month after probation.
With the assumption that it is likely that there will continue
to be a difference in the plaintiff s monthly salary (as
compared to if she had not quitted her previous employment)
at least in the next seven years, ie until 2018, the Plaintiff s
loss of earnings is as follows: [particulars provided]

7. The amended pleading does not cure the original defect. As

pleaded, the plaintiff s loss of earnings was caused by the fact that
she suffered from a major depressive disorder following the death
of her husband. Despite the valiant attempts made by Mr Lam, he
could not persuade me that the plaintiff s loss of earnings was a
proper measure of the value of the services of the deceased which
his daughter had lost as a result of his death. The appeal to reinstate
paras.30, 31, 34 and 35 of Part G of the statement of damages, as
amended by paras.3033 of the draft revised statement of damages,
is dismissed.
8. The plaintiff appears to me to have a classic claim for
damages for nervous shock, depending on whether or not she can
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. Much has been said in favour of
abandoning this restriction1 in the case of a person who has suffered
a reasonably foreseeable recognised psychiatric illness as a result of
the death, injury or imperilment of a person with whom he or she
has a close tie of love and affection.2
9. As I have dismissed the appeal to reinstate the claim for the
plaintiff s loss of earnings caused as a result of her psychiatric
condition, it follows that I must also dismiss the appeal against the
learned Masters refusal to grant leave to the plaintiff to adduce
expert evidence from a clinical psychologist on the plaintiff s
condition. However, I must observe that evidence from a psychiatrist
or a psychologist to support claims for damages for nervous shock
come within the category of expert evidence on liability, even if
such expert evidence would also invariably be used in support of
the claims on quantum.
10. On the question of costs, Mr Lam submitted that the
plaintiff received notice, on 25 May 2012, of the application to strike
out, which was only three days before the hearing of her summons
on 28 May 2012 for leave to adduce expert evidence of a clinical
1
2

By legislation or by the development of the common law (see the decision of the High
Court of Australia in Tame v New South Wales (2002) 211 CLR 317).
Cf UK Law Commission Report on Liability for Psychiatric Illness, Law Com No 249,
10 March 1998 at para.6.16. Available on the inter net at:
http://lawcommission.justice.gov.uk/publications/liability-for-psychiatric-illness.htm

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psychologist, and that I should follow Mak Yiu v Chinachem Realty

Ltd (unrep., HCA 10335/1998, 17 November 1999), to deprive the
defendant of costs even though he has been successful below. I do
not agree. The point, on which the defendant succeeded below,
and on this appeal, had been the subject matter of correspondence
exchanged between the parties. As early as 20 January 2012, Messrs
Clyde & Co, for the defendant, had asserted that the plaintiff s claim
for her own loss of earnings and her own medical expenses was not
maintainable and not recoverable. Further, the point was repeated
in the second affirmation of Ms Wong Lok Yan, the defendants
solicitor, made on 20 March 2012. Save as mentioned below, I do
not disturb the order of costs made below.
11. However, so far as costs of the appeal are concerned, whilst
those costs ought to be paid by the plaintiff to the defendant, I am
concerned that the Master struck out Part G of the statement of
damages in its entirety when she should have permitted the plaintiff
to retain para.29 of Part G in which a valid claim had been made
for the loss of services provided by the deceased to his daughter. It
is correct that Mr McLeish had conceded, in his written submissions
of 10 October 2012, that his daughters claim for the loss of his
services as a result of the death of the deceased was properly pleaded
in para.29 of the statement of damages. However, absent an appeal
to reinstate this paragraph, this valid claim could no longer be
pursued after the Masters order. I am not privy to any
correspondence from the defendants solicitors offering to permit
the plaintiff to reinstate para.29 of the statement of damages. In the
circumstances, I make a costs order nisi that the plaintiff pays 80%
of the costs of this appeal to the defendant, to be taxed if not agreed,
with certificate for counsel.
12. The costs awarded to the defendant, both here and below,
should not be taxed and paid forthwith, but only at the conclusion
of the proceedings.
Reported by Shin Su Wen

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