Wong Ka Wah v. Tai Ma Ho and Another

DCCJ1962/2017

[2018] HKDC 844

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.1962 OF 2017

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ASSESSMENT OF DAMAGES

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1.By writ issued on 25 April 2017, the plaintiff commenced these proceedings to recover damages arising out from a traffic accident on 21 Sept 2015 (the accident) caused by, inter alia, negligence of the 1^st defendant (D1) in driving private car No.RE3852 (D2’s car) as, inter alia, agent of the 2^nd defendant (D2).

2.On 6 July 2017, notice of intention to defend not having been filed, interlocutory judgment was entered against D2 for damages to be assessed. The said assessment of damages against D2 (AOD) now comes before me.

3.The plaintiff was represented by Mr Lau Ching Ho Jonathan of Messrs. Leung & Lau (Mr Lau). D2 was not represented and absent. I was, however, satisfied on the affirmations of service before me that D2 had been properly notified of the date of this AOD hearing, and served with the assessment bundle etc. I therefore proceeded with the hearing in D2’s absence as requested by Mr Lau.

Evidence

4.By order of Registrar Ho dated 20 Feb 2018, the parties were ordered to file and serve list of documents on quantum and signed witness statements as to quantum by certain deadlines, failing which the defaulting party shall be deemed to have elected not to adduce documentary evidence, or evidence from factual witnesses, on quantum at the AOD.

5.By the same order, leave was given to the parties to adduce expert motor surveying evidence, limited to one expert each, and the parties were required to lodge their expert report by certain deadline, failing which the defaulting party shall be deemed to have elected not to adduce such expert evidence.

6.On 26 Feb 2018, the plaintiff filed a motor surveying expert report dated 21 Feb 2018 (the report) prepared by Mr Raymond Lee Kai Hung (Mr Lee), a director of Roger Houghton Motor Surveys Limited (the surveyor).

7.On 15 March 2018, the plaintiff filed a witness statement in Chinese as to quantum of Liu Tak Yee (廖德怡) (Ms Liu), a Senior Claims Executive of AXA General Insurance Hong Kong Limited (AXA), dated 5 Feb 2018.

8.After expiry of the deadlines concerned, D2 had not filed any list of documents on quantum, witness statement as to quantum, or motor surveying expert report.

9.By another order of Registrar Ho dated 23 May 2018, the matter was set down for AOD on 16 July 2018. By the same order, unless otherwise directed by this court, the plaintiff do have leave to adduce in evidence his motor surveying expert report without calling the maker thereof.

10.At the AOD hearing, Mr Lau made his opening and adopted plaintiff written submissions dated 10 July 2018.

11.Mr Lau next called Ms Liu as plaintiff’s only factual witness as to quantum. Ms Liu gave her evidence in punti and was allowed to adopt her witness statement as her evidence-in-chief. She afterwards answered a few queries of this court.

12.Mr Lau did not call, and this court did not require, Mr Lee to give oral evidence in the box.

13.After closing the plaintiff’s case, Mr Lau made his succinct closing submissions on plaintiff’s behalf. I am grateful for Mr Lau’s assistance.

Analysis

14.I have carefully and fully considered all evidence, submissions and authorities before me.

15.In so considering any individual piece of evidence, including expert opinion by Mr Lee and oral evidence of Ms Liu, I have considered its inherent probabilities and watched out for its consistency and/or inconsistency within itself and/or with other evidence before me.

16.I have also looked out for the absence of any material evidence or document, if any, before me which prevents the plaintiff from proving his case on the balance of probabilities.

17.Noticeably, Ms Liu at para 16 of her witness statement referred to a repair quotation (the quotation) issued by Crown Motors Ltd. (the garage) in respect of one private car No.HT1039 (P’s car) owned by plaintiff and insured by the plaintiff with AXA but the same is missing from the assessment bundle.

18.On plaintiff’s case that the estimated repair costs of P’s car exceeding its pre-accident market value such that P’s car was considered a total loss, this court finds the quotation a material document to be considered as it would have set out the repair costs of P’s car to be charged by the garage.

19.On enquiry of this court, though accepting the quotation would have been issued by the garage in the ordinary course of events in order for AXA to assess the reasonable costs of repair of P’s car by reference to such estimate given by loss adjuster instructed by AXA, Ms Liu changed to say that she was not sure if the quotation was issued at all by the garage in this case and added that the quotation, if issued at all, would have been considered not by her team but by another team of her colleagues within AXA.

20.In this respect, this court notes that the motor survey report dated 9 Oct 2015 by the surveyor instructed by AXA made no reference to the quotation at all, which suggests that the quotation might not have been issued at all. One imagines the surveyor would have referred to and considered the quotation (if it existed) before recommending to treat P’s car as a total loss in the said report.

21.Be that as it may, at the end of the day, this court finds it unnecessary to resolve whether the quotation existed or not, and if it did, to know how much repair costs the garage charged for the repair of P’s car. Had the quotation existed at all and provided for repair costs at such sum lower than pre-accident market value of P’s car, it appears to me inherently unlikely for the surveyor to have recommended treating P’s car as a total loss, and for AXA to have paid out to plaintiff, on such a basis. In other words, had the quotation existed at all, the garage should, I think, likely have charged for repairs of P’s car exceeding its pre-accident market value.

22.Having so considered aforesaid, I am prepared to accept the expert opinion of Mr Lee and such contents of the documentary evidence in the assessment bundle referred to by me below. And I give full weight to Mr Lee’s opinion. I also accept such of Ms Liu’s evidence set out by me below.

23.I find the facts as follows on my assessment of the totality of the evidence before me.

My findings

24.On the day of the accident, the plaintiff was the registered owner of P’s car, and also the insured of P’s car with AXA under a comprehensive motor policy No.Z0722777 (the policy).

25.P’s car was manufactured in 2012 with Japan as its country/place of origin. The make is Lexus. The model is GS250.  The seating capacity (excluding driver) is 4. Its date of first registration was 15 Oct 2012.

26.The plaintiff was registered as owner of P’s car on 7 July 2015. On the schedule of the policy, P’s car was insured from 7 July 2015 to 6 July 2015 and the estimated value of P’s car provided by the insured plaintiff was $350,000[1]. The indemnity of AXA is limited to (i) the reasonable market value of P’s car at the time of its loss or damage, or (ii) the insured’s estimated value of P’s car as specified, whichever is the lesser amount.

27.On the same day of the accident, D1 was the driver of D2’s car registered in D2’s name. At 1535 hours thereof, D1 so negligently drove D2’s car that its right front collided with the offside of P’s car, causing heavy damage to it after the impact.

28.After the accident, on or about 22 Sept 2015, P’s car was sent to the garage and the plaintiff made a claim to AXA on the policy for the damage so caused to P’s car by D2’s car in the accident.

29.On AXA’s instructions, on 8 Oct 2015, the surveyor inspected P’s car at the garage (which stored P’s car until then) to assess its reasonable repair costs, and the surveyor reported its survey result to AXA by a report dated 9 Oct 2015 (which survey report forms part of the report before me by way of expert evidence).

30.The surveyor charged AXA $750 for the said survey and AXA had paid this sum.

31.On the said survey, P’s car was observed (and photos were taken as record) by the surveyor to have been heavily damaged mainly at its offside i.e. the point of the impact in the accident.

32.According to the said survey, and it is the expert opinion of Mr Lee, which I accept and give full weight, P’s car has been damaged beyond economic repair i.e. its estimated costs of repair exceeded its pre-accident current market value of $330,000 to $350,000, though P’s car had some scrap value. Mr Lee therefore recommended to AXA to treat it as a total loss and AXA had so accepted.

33.As a result, AXA invited offers to purchase P’s car in order to recover its salvage value and 3 offers ranging from $37,100 to $76,000 were forthcoming and reported by the surveyor to AXA on 12 Oct 2015. The highest offer of $76,000 by Kee Yip Motor Engineering Company (Kee Yip) was accepted by AXA and P’s car was so sold to Kee Yip, which collected P’s car from the garage on or about 15 Oct 2015.

34.Accordingly, the garage had not repaired P’s car and, by a sales invoice dated 15 Oct 2015, it charged the plaintiff only a handling charge in sum of $3,500 in respect of P’s car, which amount AXA had paid the garage by deducting the same from the sale amount of $76,000 paid by Kee Yip.

35.Subrogated to plaintiff’s claim for the accident after settling plaintiff’s claim on the policy in the sum of $327,000 after deducting a general excess of $3,000 on the policy, AXA on 5 May 2016 made a search of the registration of D2’s car at the Transport Department on the date of the accident (and found D2 to be owner thereof) and spent $45 in searching fee, in order to commence these proceedings to recover damages for damage to P’s car in the accident.

Total loss of P’s car less salvage value

36.The plaintiff claims a sum of $254,000 being the difference between the pre-accident market value of P’s car at $330,000 and its sale price of $76,000 to Kee Yip.

37.On the basis of Mr Lee’s expert opinion I accept and the facts I find above, I agree that the plaintiff is entitled to recover the pre-accident current market value of P’s car on a total loss basis (and in the sum of $330,000 at the lower end of the range of estimates as opined by Mr Lee) after giving credit for its scrap value of $76,000 paid by Kee Yip. I allow this claim in full.

Motor survey fee

38.The plaintiff also seeks to recover the sum of $750 it paid the surveyor for the survey of P’s car on 8 Oct 2015. That sounds to me a reasonable sum considering the contents of the survey report and the works of the surveyor. I also allow it in full.

Handling charge paid to the garage

39.Next, the plaintiff seeks to recover the sum of $3,500 paid to the garage by way of handling fee. This fee was notified to AXA by the surveyor in its survey report dated 9 Oct 2015.

40.Considering at the very least the storage service of P’s car provided by the garage on the facts I find above, I find this fee reasonable and also allow it in full.

Vehicle registration search fee

41.Finally, the plaintiff claims the sum of $45 AXA had paid the Transport Department for searching the registration of D2’s car on the date of the accident. I find it reasonable for the said sum to have been incurred to pursue these proceedings and the amount thereof is also, I accept, reasonable. I also allow this claim in full.

Summary

42.Accordingly, the total amount of damages D2 is liable to pay the plaintiff is $258,295 i.e. $254,000 + $750 + $3,500 + $45.

Disposition

43.Accordingly, I enter final judgment in plaintiff’s favour in the sum of $258,295 against D2.

44.I further order D2 to pay plaintiff interest on the said judgment sum at HSBC best lending rate from 21 Sept 2015 until the date of this assessment (and it would, of course, carry post-assessment interest at judgment rate until payment) as sought by Mr Lau.

Costs

45.Costs normally follow the event. And I find this case suitable for summary assessment as suggested by Mr Lau.

46.I therefore order D2 to pay the plaintiff the costs of AOD, including all reserved costs and the costs of this hearing before me, which costs is summarily assessed by me in the sum of $53,000, having regard to the statement of costs dated 10 July 2018 prepared by plaintiff’s solicitors before me.

Mr Jonathan Lau Ching Ho of Messrs. Leung & Lau for the plaintiff

The 2^nd defendant was unrepresented and absent