Académique Documents
Professionnel Documents
Culture Documents
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
782
2012/12/149:41
783
782
2012/12/149:41
784
782
2012/12/149:41
29.
30.
31.
32.
33.
34.
785
$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
2012/12/149:41
786
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
35.
782
2012/12/149:41
787
782
2012/12/149:41
788
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
2012/12/149:41
33.
789
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
782
2012/12/149:41
790
782
2012/12/149:41