Wong Chun Wai v. Yeung Chun Kit and Another

DCCJ2908/2018

[2019] HKDC 996

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.2908 OF 2018

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ASSESSMENT OF DAMAGES

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1.By writ issued on 5 July 2018, the plaintiff commenced these proceedings to recover damages arising out from a traffic accident on 9 Feb 2017 (the Accident) caused by, inter alia, negligence of the 1^st defendant (D1) in driving private car No.HP5289 (the Car) as agent and/or servant of the 2^nd defendant (D2).

2.On 23 July 2018, this court received acknowledgment of service of amended writ filed by D1 and D2. Both indicated they intended to contest these proceedings.

3.On 1 Aug 2018, the plaintiff filed and served his Statement of Claim (SOC) on D1 and D2.

4.According to SOC, it was averred that, at the time of the Accident, the plaintiff was driving a private car No.TN7375 (P’s Car) along Wai Yip Street flyover, Ngau Tau Kok, Kowloon, towards Kowloon Bay, behind a light goods vehicle No.MD8672 (the LGV). He saw the LGV slowing down near a lamppost and slowed down P’s Car in turn. But D1, driving the Car behind P’s car, failed to stop or slow down the Car in time, causing its front to hit the rear of P’s Car (the 1^st Collision) and further pushing P’s Car to collide with the LGV ahead (the 2^nd Collision). The 1^st and 2^nd Collisions were said to have been caused by, inter alia, negligence of D1 as agent and/or servant of D2, who was vicariously liable for the same.

5.As a result of D1’s negligence, it was averred in para 9 & 10 of SOC that P’s Car was damaged, causing the plaintiff to suffer loss and damage totaling $117,006.20 and particulars of such loss and damage were given at para 10.

6.Despite expiry of prescribed time, D1 and D2 have failed to file their respective defence. On 3 Jan 2019, interlocutory judgment was entered in plaintiff’s favour against them for damages to be assessed. The said assessment of damages against them (AOD) now comes before me.

7.The plaintiff was represented by Mr Lau Ching Ho Jonathan of Messrs. Leung & Lau (Mr Lau) at this AOD hearing.

8.D1 in person attended this AOD hearing.

9.D2 is also unrepresented. One Mr Chu Wai Man (Mr Chu) claiming to be D2’s merchandising staff attended this AOD hearing purporting to represent D2. D2 has, however, not fulfilled requirements of O.5A r.2, Rules of District Court, in order to act in person. After explaining the said non-compliance to Mr Chu[1], this court treated D2 as being absent at this AOD hearing.

10.Having read affirmation of service filed by plaintiff’s solicitors[2] and having obtained Mr Lau’s undertaking to arrange within 7 days filing of another affidavit of service proving service of Registrar Ho’s order dated 11 June 2019 on the defendants,  I am satisfied that D2 has been duly notified of this hearing and I acceded to Mr Lau’s request to proceed with this AOD hearing in the absence of D2. D1 did not object to that course of action.

Evidence

11.By order of Registrar Ho dated 21 Feb 2019, 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.

12.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 and serve their expert report by certain deadline, failing which the defaulting party shall be deemed to have elected not to adduce such expert evidence. And it was further ordered that such expert reports shall, unless otherwise directed by the court, be adduced in evidence without the makers thereof being called to give oral testimony at AOD.

13.On 25 Apr 2019, the plaintiff filed a motor surveying expert report dated 23 Mar 2017 and 13 Apr 2017 (the Report) prepared by Mr Raymond Lee Kai Hung (Mr Lee), a director of Roger Houghton Motor Surveys Limited (the Surveyor).

14.On the same date, the plaintiff also filed a witness statement as to quantum in Chinese of 陳凱政 (Mr Chan), the assistant claims services manager of AXA General Insurance Hong Kong Limited (AXA), dated 23 Apr 2019.

15.After expiry of the deadlines concerned, D1 and D2 have not filed any list of documents on quantum, witness statement as to quantum, or motor surveying expert report.

16.By another order of Registrar Ho dated 11 June 2019, this action was set down for AOD on 24 July 2019. 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.

17.At this AOD hearing, Mr Lau made his opening by adopting his written submissions dated 17 July 2019. He confirmed that plaintiff makes only 4 heads of claim particularized in para 10 of SOC, namely, 1) vehicle repair costs of $115,111.2, 2) survey fee of $1,000, 3) towing fee of $850 and 4) vehicle registration search fee of $45, thus making a total claim of $117,006.20.

18.Mr Lau indicated to this court that he does not call Mr Lee and will rely on the Report alone. He next called Mr Chan as his only factual witness as to quantum. With agreement of Mr Lau and D1, this court allowed Mr Chan to adopt the contents of his signed witness statement as to quantum as his evidence-in-chief. D1 elected not to cross-examine Mr Chan.

19.As D1 has not complied with earlier court orders in para 11 & 12 above as to trial and evidence preparation, he could not, and did not, call any evidence at this AOD hearing.

20.Mr Lau thereafter proceeded to make closing submissions on behalf of the plaintiff. D1 last made closing submissions, including on plaintiff’s claim for costs in statement of costs dated 17 July 2019 prepared by plaintiff’s solicitors.

Discussion

Assessment of evidence

21.Having read the Report and considered its contents against the rest of evidence before me, I accept, and give full weight to, expert evidence of Mr Lee expressed in the Report. His opinion is, I think, supported by the photos of P’s Car attached to the Report and D1 made no contrary submissions against his opinion.

22.I also accept other documentary evidence produced by the plaintiff before me.

23.Finally, I accept the oral evidence of Mr Chan, whose evidence is well supported by documents and expert opinion before me and not challenged by D1.

Factual findings

24.First of all, all such allegations of liability against D1 and D2 in SOC in para 4 above are, of course, deemed to have been admitted by them for their default of filing defence.

25.On my assessment of the evidence in para 21 to 23 above, I find for the following additional facts.

26.On the day of the Accident, the plaintiff had P’s Car insured with AXA (the Policy). P’s Car was manufactured in 2011 with Japan as its country/place of origin. The make is Toyota. The model is Voxy. Its body type is station wagon. Its seating capacity (excluding driver) is 7. Its date of first registration was 31 July 2015.

27.After the Accident, P’s Car was on the same day towed from the scene of the Accident to a garage in Shau Kei Wan by the name of Braintrust Motors Service Co. (the Garage) at a towing fee of $850 charged by a transportation company (which sum the plaintiff had paid the said company on the same day).

28.The plaintiff also reported the Accident to AXA and made a claim on the Policy.

29.On 10 Feb 2017, the Garage gave a written quotation for the repair of P’s Car in the total sum of $203,923, consisting of $47,200 for labour and $156,723 for parts (the Quotation).

30.On AXA’s instructions, on 16 Mar 2017, the Surveyor inspected P’s Car at the Garage to assess its damaged conditions and its reasonable repair cost. Photos of P’s Car were taken showing it having moderately damaged, with various parts to be replaced and repairs required to be done to its front fender panels, front chassis frames, rear compartment floor panel, rear quarter panels and electrical system. These photos were attached to the Report. These damage, I accept, was all caused by the Accident.

31.The Surveyor reported its survey result to AXA on 23 Mar 2017. Mr Lee made adjustments to all parts for betterment (or depreciation in the sum of $19,777.8) and also made adjustments to the costs of repair of P’s Car given in the Quotation. He reduced the labour costs to $36,000 and the costs of parts to $79,111.20, making a total repair cost of $115,111.20 after his adjustments (the Adjusted Repair Cost).

32.Mr Lee opined, and I accept his opinion, that the Adjusted Repair Cost of P’s Car is reasonable.

33.The Garage was then instructed to repair P’s Car at the Adjusted Repair Cost.

34.On AXA’s instructions, on 12 Apr 2017, the Surveyor inspected again P’s Car at the Garage after completion of its repair by the Garage and photos were taken (and attached to the Report) showing P’s Car in satisfactory condition after repair. The Surveyor so reported its findings to AXA on 13 Apr 2017.

35.On 14 Apr 2017 and 13 May 2017, the plaintiff and AXA paid the Garage the 2 respective sums of $23,777.8 and $91,333.4, paying the Garage the Adjusted Repair Cost in full.

36.The Surveyor has charged AXA the 2 sums of $700 and $300 for its 1^s survey and 2^nd survey taken of P’s Car at the Garage and its reports thereafter to AXA. And AXA has paid the said 2 sums to the Surveyor on 23 Mar & 13 Apr 2017.

37.For purpose of making a subrogated claim for damage to P’s Car insured under the Policy, AXA has on 22 Aug 2017 made a search of the registration of the Car at the Transport Department on the date of the Accident and spent $45 in searching fee.

The Adjusted Repair Cost

38.The plaintiff claims this sum of $115,111.2 paid to the Garage.

39.On my findings above, I accept this sum was incurred by the plaintiff (and by AXA on his behalf) as a result of the Accident. I am also satisfied that the claimed amount is reasonable. I allow its recovery in full, notwithstanding there is, according to Mr Lee, an element of betterment in the sum of $19,777.8.

40.Where there is an element of betterment in the amount paid for parts replacement, it is not deductible, and the whole sum remains recoverable at law, as it is unavoidable that new parts are used to replace old parts in the course of repair: Wong Ping Mui v Mak Hung On, unreported, DCCJ 2874 of 2001, Cheung HHJ (as he then was), 12 Oct 2001, para 3-5.

41.I follow the above authority and decide the same in the circumstances before me.

Motor survey fee

42.The plaintiff also seeks to recover this total sum of $1,000 paid to the Surveyor.

43.I also allow this total sum in full. I find it incurred as a result of the Accident and a reasonable amount considering the contents of the Report and the works required of the Surveyor.

Towing fee

44.The plaintiff further seeks to recover the towing fee of $850. I also find this fee reasonable and incurred as a result of the Accident and allow it in full.

Vehicle registration search fee

45.Finally, the plaintiff claims the searching fee of $45 and I also allow it in full. This is a reasonable fee for a reasonably necessary step to proceed with this action.

Summary of assessment

46.Accordingly, the total amount of damages D1 and D2 are held liable by me on this assessment to pay the plaintiff is $117,006.2 i.e. $115,111.2 + $1,000 + $850 + $45.

Interest

47.Mr Lau seeks interest on total assessed damages at HSBC best lending rates from the date of Accident to today and thereafter at judgment rate until payment.

48.D1 did not object to paying interest or the rate of interest sought. But interest, he argued, should accrue from a date later than that of the Accident as the majority of plaintiff’s loss was paid out some time after the Accident.

49.I agree with D1 and will order interest to accrue at a date later than that of the Accident.

Disposition

50.On my assessment, I enter final judgment in plaintiff’s favour against D1 and D2 in the sum of $117,006.2, together with interest thereon at HSBC best lending rates from 1 May 2017 to today and thereafter at judgment rate until full payment.

Costs of AOD

51.Costs normally follow the event. The plaintiff is a successful party in this AOD in having obtained meaningful amount of damages against D1 and D2. Therefore, D1 and D2 should, in my views, pay the costs of AOD to the plaintiff.

52.D1 did not argue otherwise before me. He, however, argued against costs totaling $99.936.6 the plaintiff sought by way of summary assessment in his statement of costs.

53.All things considered, I think the total costs claimed by plaintiff is disproportionate and unreasonable having regard to, inter alia, the relatively simplicity of this AOD and the relatively small amount of total damages awarded. On a broad-brush basis, I summarily assess the costs of AOD at the total sum of $55,000.

54.I therefore order D1 and D2 to pay the plaintiff the costs of AOD, including all reserved costs and the costs of this hearing before me, which costs I summarily assess in the total sum of $55,000.

55.Finally, I thank Mr Lau for his submissions.

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

The 1^st defendant appeared in person

The 2^nd defendant was unrepresented and absent