Re: Apportionment under the Fatal Accidents Ordinance and the Law Amendment and Reform (Consolidation) Ordinance

Tony W. H. Luk, Solicitor, Oliver C. M. Chan & Co.

Oftentimes, plaintiffs will envisage the necessity of apportionment in one cause of action comprising claims under the Fatal Accidents Ordinance (“FAO”) and the Law Amendment and Reform (Consolidation) Ordinance (“LARCO”) amid the acceptance of payment into court by defendants. In Hse Fei Lun, the administrator of the estate of Lam Chu Yuk, the deceased v So Suk Yee and Wu Ching Yan Becky [2014] 4 HKC 507, the plaintiff sought an order for apportionment on argument of no necessity by the defendant on account of the fact that there was no infant interest involved and no apparent conflict of interest between different dependants who, being adults, could be safely left to apportion the settlement sum solely by themselves. The court had clarified the question of requirement of apportionment and ruled in favour of the plaintiff that adult dependants (or compromised plaintiffs) making claims under the aforesaid Ordinances in one cause of action are required to apportion the compensation by a court order.

Yet following the case of Hse Fei Lun, the necessity of apportionment is still open for debate, and on that score, peers even bicker in claims involving small amounts. Upon a further reading of the case, these issues may not be so clear cut. As adults are not thick-headed, most are shrewd to settle the compensation among themselves or with the assistance of their solicitors, without court intervention. In situations like a clear-cut case involving a small claim by a couple as administrators with no beneficiaries, touching funeral expense of HK$40,000, statuted bereavement of HK$150,000 and damages representing pain and suffering and loss of amenities of HK$20,000 (totalling HK$210,000), there is, to be seen, no point of apportionment. In particular, no adult or compromised plaintiffs have to go through the court for distribution, especially in view of equal sharing of bereavement under the deeming s.4(2)(h) of FAO. The remaining sums of HK$40,000 and HK$20,000 are not disbelievingly available to a LARCO claim. The whole HK$60,000 is retained by the couple as administrators who shall hold upon trust for the beneficiary (although there is none here). Even if there are beneficiaries (in other cases), the administrators (or a single administrator in other cases) requiring no apportionment have indeed the indefeasible right to divide HK$60,000 among the beneficiaries in their good discretion with which the court will likely not interfere, in the least. (If there is no loss of dependency claim under FAO, why the rush for apportionment?)

On the surface, Hse Fei Lun points out the required apportionment under FAO with reference to the FAO Act 1976, but underneath, it tends to show no required apportionment under LARCO when the above situations reflect non-interruption of the court while the administrator or administrators is at the helm of distributing compensation. The editor of the Civil Procedure 2015 may purposely escape the publication of unnecessary apportionment under LARCO claim underneath paragraph 80/15/3, but for further guidance on apportionment, we shall be over the moon at reading all the more on the captioned topic in the upcoming edition of the Civil Procedure.