Ko Tak Fat v. Wong Ka Fai

DCCJ 3025/2019

[2021] HKDC 83

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3025 OF 2019

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Before: Master Maurice Lam in Court (Open to public)

Date of Hearing: 19 January 2021

Date of Assessment of Damages: 27 January 2021

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.This is a hearing for assessment of damages arising out of a traffic accident happened on 14 June 2013, where the defendant is said to have caused damages to the plaintiff’s vehicle.  On 13 June 2019, the plaintiff brought the present proceedings against the defendant claiming various losses and damages, including (i) the repair costs of his vehicle, (ii) survey fee, and (iii) policy excess.

2.On 4 September 2019, in absence of any notice of intention to defend, the plaintiff entered an interlocutory judgment against the defendant with damages to be assessed.  This assessment hearing is held in pursuance of that judgment.

3.On behalf of the plaintiff, two witness statements were filed on 13 March 2020 and 16 September 2020.  Pursuant to paragraph 3 of the order made by Registrar Lui on 7 November 2019 and paragraph 2 of the order made by Master Rita So on 9 October 2020, leave was granted to the plaintiff to adduce expert evidence without the need of calling the maker of the same.  An expert report prepared by Mr Raymond Lee Kai Hung was filed on 13 March 2020.

4.In pursuance of the said order made by Master Rita So, this action was set down for assessment of damages before me on 19 January 2021.

5.At the hearing, the plaintiff is represented by Mr Jonathan Lau (“Mr Lau”) of Messrs Leung & Lau, Solicitors LLP, solicitors for the plaintiff. The defendant is not legally represented and appears in person.

ANALYSIS OF EVIDENCE

6.Having considered the materials placed before me, I accept that the documentary evidence is consistent with each other and inherently plausible.  I will attach full weight to them.

7.I also accept the expert opinion given by Mr Raymond Lee Kai Hung (“Mr Lee”).  Mr Lee is the managing director of Roger Houghton Motor Surveys Limited (“the Adjustor”), the adjustor in this case.  He has over 40 years of experience in providing consulting services on motor vehicles and was specialized in the loss adjustment for motor vehicles[1]. I am satisfied that he is qualified to give expert opinion in respect of the quantum of the plaintiff’s loss and damage.  Furthermore, he inspected the plaintiff’s vehicle with post-accident photographs taken on 17 June 2013 showing the damages sustained in the accident[2]. I find that his opinion is both reasonable and plausible.

8.At the hearing, Mr Lau called the plaintiff and Ms Chu Siu Ching Jeanne (“Ms Chu”) of AXA General Insurance Hong Kong Ltd, the plaintiff’s insurer, as factual witnesses.  Both the plaintiff and Ms Chu adopted their witness statements as examinations-in-chief.  They also answered some questions raised by me.  The plaintiff further answered questions raised by the defendant.  On the whole, I find nothing inherently improbable about the plaintiff’s and Ms Chu’s evidence.

PLAINTIFF’S CASE

9.The plaintiff is the owner of a private vehicle bearing registration number JL3964[3]. The make of the vehicle is Mercedes Benz and the model is B200.  The vehicle was manufactured in 2012[4]. At the material times, the defendant was the driver of a private vehicle bearing registration number FF1307[5].

10.At about 5:00 pm on 14 June 2013, the plaintiff was driving his vehicle along the 2^nd left lane of Yuen Long Highway, at the speed of about 50-60 kilometers per hour.  After seeing a heap of branches on the said lane and in order to avoid it, the plaintiff tried to change lane to the 1^st left lane.  Since there was a heavy traffic on the 1^st left land, he had to slow down before he could change the lane.  When the plaintiff gradually slowed down near the lamppost 38.6(A) New Territories, the defendant’s vehicle bumped into the rear of the plaintiff’s vehicle causing damages to the latter.  The plaintiff says that the accident was caused by the defendant’s negligence and/or breach of statutory duty[6].

11.After the collision, the plaintiff informed his insurer of the accident[7]. The plaintiff later submitted to his insurer an estimate of costs prepared by Zung Fu Company Ltd (“the Garage”)[8]. It was quoted that the total repair costs amounted to $245,408.88, consisting of $132,561.38 for parts, $112,847.50 for labours[9].

12.After receiving the said estimate from the Garage, the plaintiff’s insurer appointed the Adjustor to appraise the estimate of costs[10]. The repair costs and labour charges were reduced to $200,362,24, consisting of $110,864.74 for parts and $89,497.50 for labours.  According to the motor survey report prepared by the Adjustor, the back door panel, back door lock, rear bumper cover, rear cross member, back panel and rear exhaust of the plaintiff’s vehicle were seriously distorted.  Rear lamps, safety belts, rear parkings, back door weatherstrip, back door outer handle and rear bumper mouldings were cracked[11].

13.It appears that, according to the plaintiff’s insurance policy, there was net policy excess of $1,000, which the plaintiff had duly paid to the Garage on 12 July 2013[12]. The insurer had paid the Garage the balance of the repair costs at the sum of $199,362.24[13].

14.The Adjustor also charged $700 for the survey fee.

DISCUSSION

(1)     Repair costs

15.I accept that the total repair costs for the damages sustained as a result of the accident amounted to $200,362.24.  I am also satisfied that, even though the repairs costs were mostly borne by the plaintiff’s insurer, the plaintiff is entitled to be compensated for the same in full[14]. As I have explained to the defendant at the hearing, there is nothing before me that could challenge the reasonableness of the amount of said repair costs.

16.I also find that the defendant should also compensate the plaintiff for the policy excess which he had actually paid.

17.Accordingly, I would award the repair costs in full at the sum of $200,362.24.

(2)     Survey fee & vehicle search fee

18.The plaintiff also incurred survey fee in the sum of $700 for the preparation of the motor survey report.  This expense was supported by a receipt[15]. I find the amount reasonable and would allow it in full.

(3)     Total amount of award

19.Accordingly, I hold that the plaintiff is entitled to recover from the defendant the repair costs and the survey fee.  The total amount of damages which the defendant is liable to pay the plaintiff is therefore $201,062.24 (ie, $200,362.24 + $700).  A final judgment is to be entered in favour of the plaintiff in this amount.

INTERESTS

20.In his skeleton submission, Mr Lau submitted that the plaintiff would claim pre-judgment interests at the best lending rate from the date of the accident until the date of this assessment.  Mr Lau relies on two authorities[16] in support of this contention.

21.I notice that the plaintiff has not brought proceedings against the defendant until the last minute before the expiry of the relevant limitation period.  At the hearing, I raise the query with Mr Lau in respect of the plaintiff’s delay and whether the Court should exercise its discretion to disallow certain pre-judgment interest in respect of the period or the rate. Mr Lau submits that the Court should not take the delay into account.  He informs me from the bar table that the reason why the plaintiff did not bring the present proceedings earlier was due to the communications between the plaintiff’s and the defendant’s respective insurers.  He also submits that, in fixing the interest rate at the best lending rate, the relevant authority should have considered the position of the paying party, who should not have suffered any unreasonable detriments therefrom.

22.With all due respect, I cannot accept Mr Lau’s submission.  In exercising of my discretion in awarding pre-judgment interest, I fully appreciate the basic principle that interest is awarded to compensate the plaintiff for being kept out of money which ought to have been paid to him[17]. However, it would be wrong to suggest that the Court should not take the delay into account where the plaintiff have kept out of the sum awarded by his own fault. In Jefford v Gee[18], Lord Denning said:-

“In exceptional cases, such as when one party or the other has been guilty of gross delay, the court may depart from the above suggestions by diminishing or increasing the award of interest, or altering the periods for which it is allowed.”

23.Morland J also said thus in Read v Harries[19]:-

“…the general principle is that a successful claimant is entitled to reasonable interest on the damages that I recovered by her. But in exceptional circumstances, that interest is not recoverable in full of it is established that there has been gross and unjustifiable delay either on the part of the claimant, or on the part of those advising her, in prosecuting the claim and bringing the action to trial.”

24.In Spittle v Bunney[20], the trial took place 7 ½ years after the accident.  Turner J reduced the period over which he allowed interests on pain, suffering and loss of amenity by two years to take account of the unreasonable delay in bringing the action to trial caused by the claimant.  The Court of Appeal held that the learned judge was right to do so. 

25.In exercising the Court’s discretion to disallow interest due to delay, Jackson J has given the following guidelines in Claymore Services Ltd v Nautilus Properties Ltd[21]:-

“(1)  Where a claimant has delayed unreasonably in commencing or prosecuting proceedings, the court may exercise its discretion either to disallow interest for a period or to reduce the rate of interest.

(2)  In exercising that discretion the court must take a realistic view of delay. In the case of business disputes, litigation is for all parties an unwelcome distraction from their proper business. It is not reasonable to expect any party to take every litigious step at the first possible moment, or to concentrate on litigation to the exclusion of all else. Delay should only be characterised as unreasonable for present purposes when, after making due allowance for the circumstances, it can be seen that the claimant has neglected or declined to pursue his claim for a significant period.

(3)  When determining what disallowance or reduction of interest should be made to mark a period of unreasonable delay, the court should bear in mind that the defendant has had the use of the money during that period of delay.”

26.Furthermore, as pointed out by the learned editors of Kemp & Kemp: The Quantum of Damages, “the court will take a broad brush approach in reducing interest where there is delay by a claimant.”[22] The Court of First Instance has accepted this as the correct statement of law[23].

27.Recently, in Hong Kong, Mr Justice Ng J has adopted a broad brush approach in disallowing interests for a total of 35 months to reflect the plaintiff’s undue delay in prosecuting the action[24]. Similarly, Mr Justice Bharwaney J has disallowed interests for a period of about 6 years and 9 months to take account of the plaintiff’s substantial inactivity in the prosecution of the action[25].

28.The delay in the present case is substantial.  Notwithstanding Mr Lau’s submission, I do not find that the delay is reasonably justifiable.  There are ample authorities for the proposition that the Court is entitled to take the delay into account when considering the issue of interest. 

29.In my view, it is not fair for the defendant to bear the consequence of the delay where he is at no fault.  Accordingly, on a broad-brush approach, I would disallow the plaintiff’s interests for a period of 3 ½ years, between 14 June 2013 and 13 December 2016.  I would not make any discount in respect of the interest rate.  

30.There shall also be post-judgment interests at the judgment rate until full payment.

COSTS

31.Costs should follow the event.  As the plaintiff has obtained a meaningful amount of damages, he should be regarded as the successful party in this assessment of damages.  The defendant should therefore pay his costs of this assessment.

32.According to his statement of costs, the costs incurred by the plaintiff amounted to $118,421.20.  I find this amount to be disproportional in view of the size of damages that I am going to award.  In my view, the plaintiff’s costs should not exceed $52,500, being 15-hour works of a fee earner at $3,500 per hour.  I will allow the manual work (item B) and disbursements (item E) in full.  On a broad-brush basis, I summarily assess the plaintiff’s costs at $57,000.

DISPOSITION

33.For the reasons as aforesaid, I enter a final judgment in the plaintiff’s favour against the defendant in the sum of $201,062.24, together with interests thereon at the HSBC best lending rate from 14 December 2016 to the date of this assessment and thereafter at the judgment rate until full payment.

34.I also order that the defendant shall pay the plaintiff’s costs of this action, including this assessment of damages, summarily assessed at $57,000, payable forthwith.

35.For the benefit of the defendant, the assessment hearing has been conducted in punti.  As indicated at the hearing, if requested, court interpreter’s assistance may be arranged for the defendant in receiving this decision of assessment. 

Mr Jonathan Lau of Leung & Lau, Solicitors LLP, for the plaintiff

The defendant was not represented and appear