Budworth Co Ltd v. Lam Po on and Another

DCCJ 3270/2020

[2022] HKDC 297

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3270 OF 2020

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BETWEEN

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

Date of Hearing: 12 April 2022

Date of Assessment of Damages: 19 April 2022

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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 back in 2014, where the defendants caused damages to the plaintiff’s vehicle. The plaintiff instituted the present proceedings against the defendants claiming various losses and damages, including (i) the repair costs of his vehicle, and (ii) survey fee.

2.In absence of any notice of intention to defend, the plaintiff entered two interlocutory judgments with damages to be assessed against the 1^st defendant on 25 August 2020 and against the 2^nd defendant on 21 September 2020 respectively. This assessment hearing is held in pursuance of those judgments.

3.A witness statement was filed on 27 November 2020 on behalf of the plaintiff. The plaintiff also relies on an expert report prepared by Mr Hui Wing Ka (“Mr Hui”) dated 1 August 2014[1]. The expert was verified by the original maker by way of an Additional Expert Statement dated 19 November 2021[2]. The defendants have not filed any witness statement nor expert evidence in this case.

4.At the hearing, the plaintiff is represented by Mr Jethro Pak of counsel. Both defendants are not legally represented, and the 1^st defendant does not appear in the hearing. The 2^nd defendant however sends a Ms Leung to attend the hearing. It is noted that the statutory requirement under O 5A, r 2(2) of the Rules of the District Court has not been complied with. Upon inquiry, I am informed by Ms Leung that the 2^nd defendant only intends to observe the proceedings, and that she is not prepared to participate in the hearing. Accordingly, no leave is granted to Ms Leung to represent the 2^nd defendant, and the 2^nd defendant is treated as absent.

ANALYSIS OF EVIDENCE

5.Having considered the materials placed before me, I am satisfied that the documentary evidence adduced by the plaintiff is consistent with each other and inherently plausible. I will attach full weight to them.

6.I also accept the expert opinion given by Mr Hui. Mr Hui is the managing director of Anderson & Ashe Motor Survey and Adjusters Co (“the Adjuster”), the adjuster in this case. He has over 35 years of experience in surveying motor vehicles, as well as assessing loss and damages of a vehicle, and giving advice on the market valuation of a damaged vehicle. He has also previously served as an expert witness in court over 50 occasions[3]. I am satisfied that he is qualified to give expert opinion in respect of the quantum of the plaintiff’s loss and damage. Furthermore, according to his testimony, he had inspected the plaintiff’s vehicle with post-accident photographs taken shortly after the accident showing the damages sustained in the accident. I find that his opinion stated in the motor survey report is both reasonable and plausible.

7.At the hearing, Mr Pak called Ms Sin Mee Yu Meonne (“Ms Sin”) as factual witness. Ms Sin is the director of the plaintiff. She adopted her witness statements as examinations-in-chief. She also answered some questions raised by me. On the whole, I find nothing inherently improbable about Ms Sin’s evidence.

PLAINTIFF’S CASE

8.The plaintiff is the registered owner of a private vehicle bearing registration number RH3104[4]. The make of the vehicle is Honda and the model is RK185CM KU Stepwgn. The vehicle was manufactured in 2012[5]. At the material times, the 1^st defendant was the driver of a private vehicle bearing registration number DB7737, and the 2^nd defendant was the registered owner of it[6].

9.At about 1553 hours on 15 July 2014, the plaintiff’s vehicle was travelling on the first lane of the Chatham Road north following another vehicle. On reaching the location near Chatham Road south, both the plaintiff’s vehicle and the one in front of it slowed down and came to stationary to comply with the traffic conditions. But the defendants’ vehicle failed to stop and ran into the rear of the plaintiff’s vehicle, which pushed forward and fit the vehicle in front. The plaintiff’s vehicle was damaged as a result[7].

10.After the collision, the plaintiff informed his insurer of the accident. The plaintiff’s insurer obtained an estimate of repaired costs from Dah Chong Hong (Motor Service Centre) Ltd (“the Garage”). It was quoted that the total repair costs amounted to $186,799, consisting of $95,489 for parts, $91,310 for labour[8].

11.After receiving the said estimate from the Garage, the plaintiff’s insurer appointed the Adjuster to appraise the estimate of costs. The repair costs and labour charges were reduced to $131,000, consisting of $61,315 for parts and $69,685 for labour. It also appears that, according to the plaintiff’s insurance policy, the plaintiff was required to bear the policy excess of $3,500 and depreciation in the sum of $9,197.30[9].

12.According to Ms Sin, the plaintiff had duly paid the policy excess and depreciation in a total sum of $12,697.30, and the insurer had paid the Garage the balance of the repair costs at the sum of $118,302.70[10].

13.According to the motor survey report prepared by the Adjuster, the extent of damages sustained to the plaintiff’s vehicle was assessed to be moderate. Many parts (including front and rear bumpers, beam, lamp and trim covers, lining, antenna, buzzer, etc) needed to be replaced. Other parts (such as the damaged body area, rear and floor penal, rear cross member and rear fender, etc) need to be repaired[11].

14.The Adjustor charged $800 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 $131,000. According to the receipts issued by the Garage, the plaintiff paid the sum of $12,697.30 on 5 September 2014[12], and the plaintiff’s insurer paid the sum of $118,302.70 on 13 November 2014[13]. There is no evidence before me that could challenge the reasonableness of the said amount of repair costs.

16.As Mr Pak submits, even though the repairs costs were partly borne by the plaintiff’s insurer, the plaintiff is entitled to be compensated for the same in full[14].

17.Mr Pak also submits that the defendants should also compensate the plaintiff for the policy excess it had paid. I agree.

18.Accordingly, I would award the repair costs in full at the sum of $131,000.

(2) Survey fee

19.The plaintiff also incurred survey fee in the sum of $800 for the preparation of the motor survey report. This claim is supported by a receipt[15]. I find the amount reasonable and would allow it in full.

(3) Total amount of award

20.Accordingly, I hold that the plaintiff is entitled to recover from the defendants the repair costs and the survey fee. The total amount of damages which the defendants are liable to pay the plaintiff is therefore $131,800 (ie, $131,000 + $800). A final judgment is to be entered in favour of the plaintiff in this amount.

INTERESTS

21.In his opening submission, Mr Pak submits that the plaintiff would claim pre-judgment interests at 1% above the best lending rate from the date of the accident until the date of this assessment[16].

22.I note that, in the present case, there is a period of 6 full years between the date of the accident (15 July 2014) and the commencement of the present proceedings (29 June 2020). I also note that the plaintiff’s insurer issued a demand letter to the 1^st defendant on 10 March 2017[17]. No action had been taken by the plaintiff until 3 years thereafter when its solicitors issued the pre-action letter to both 1^st and 2^nd defendants, as well as their insurer, on 28 April 2020[18]. According to Ms Sin, she only became a director of the plaintiff in about 2019, and therefore cannot provide any explanation for this delay of 3 years.

23.At the hearing, I invite Mr Pak to make submission in respect of the plaintiff’s delay in bringing the action and whether the Court should exercise its discretion to disallow certain pre-judgment interest in respect of the period or the rate. Mr Pak fairly accepts that there is no explanation for the delay, and makes no further submission in this respect.

24.In my view, the delay in the present case is both substantial and inexcusable. I do not find it fair for the defendants to bear the consequence of the delay which they are at no fault. Accordingly, on a broad-brush approach, I would disallow the plaintiff’s interests for a period of 3 years, between 15 July 2014 and 14 July 2017. I would not make any discount in respect of the interest rate.

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

COSTS

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

27.At the hearing, Mr Pak indicates that the plaintiff does not wish to make any further submission in respect of costs and would leave it to the Court to determine the amount.

28.According to its statement of costs, the costs incurred by the plaintiff amounted to $175,186.50. I find this amount to be grossly inflated, and disproportional in view of the size of damages which I am going to award. The nature and complicity of this case do not warrant works involving two fee earners, and the case can be properly handled by a relatively junior solicitor. In my view, the profit costs should not exceed $39,000, being 15-hour works of a fee earner at the rate of $2,600 per hour. I would allow the manual work (item B), brief of counsel (item E3), and disbursements (item E) in full. On a broad-brush basis, I summarily assess the plaintiff’s costs at $67,231.50 (ie, $39,000 + $4,718 + $15,000 + $8,513.50).

DISPOSITION

29.For the reasons as aforesaid, I enter a final judgment in the plaintiff’s favour against the 1^st and 2^nd defendants jointly and severally in the sum of $131,800, together with interests thereon at 1% above the HSBC best lending rate from 15 July 2017 to the date of this assessment and thereafter at the judgment rate until full payment.

30.I also order that the 1^st and 2^nd defendants shall jointly and severally pay the plaintiff’s costs of this action, including this assessment of damages, summarily assessed at $67,231.50, payable forthwith.

31.For the benefit of the 2^nd defendant’s representative, the assessment hearing is conducted in punti. Court interpreter’s assistance may be arranged upon request for the defendants in receiving this decision of assessment.

Mr Jethro Pak, instructed by John Lam, Law & Co, for the plaintiff

The 1^st and 2^nd defendants were not represented and did not appear