Wong Ho Man v. Cheng Pui Ying and Another

DCCJ 2709/2021

[2023] HKDC 115

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2709 OF 2021

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ASSESSMENT OF DAMAGES

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Background

1.This is an assessment of damages consequent upon interlocutory judgment having been entered against the 1^st and 2^nd defendants on 5 August 2021.

2.The plaintiff was the registered owner of a private car bearing registration no HM1686. According to the Vehicle Registration Document, the Date of First Registration of the plaintiff’s car, a Mercedes Benz A200, was 25 March 2013 and he was the third owner of the car.

3.At about 8:08 am on 27 May 2017, at near Chainage 15.0A, Tolo Highway (Kowloon bound), Tai Po, New Territories, Hong Kong, the plaintiff’s car was hit and damaged by a private car bearing registration no PA5226 driven by the 1^st defendant (the “Accident”).

4.At the time of the Accident, the 1^st defendant was driving the 2^nd defendant’s car. As pleaded in the Endorsement of Claim, it is the plaintiff’s case that the 2^nd defendant is liable for the 1^st defendant’s negligence “in instructing and/or authorizing the 1^st defendant being her employee, servant and/or agent” in using the 2^nd defendant’s car.

5.The 1^st defendant was convicted of careless driving on 1 November 2017.

6.By a Writ of Summons issued on 10 June 2021, the plaintiff issued these proceedings to recover loss and damages arising from the Accident.

7.No notice of intention to defend was filed by the 1^st and 2^nd defendants and on 5 August 2021, interlocutory judgment was entered in favour of the plaintiff against them with damages to be assessed.

The Hearing

8.At the hearing of the assessment of damages, the 1^st and 2^nd defendants were absent. However, the plaintiff’s solicitors have served the Order of Master Michelle Soong dated 5 October 2022 (the “Order”) on the 1^st and 2^nd defendants. The Order sets out the date, time and venue for the hearing of the assessment of damages.

9.The plaintiff’s solicitors have also served on the 1^st and 2^nd defendants, among other documents, the plaintiff’s List of Documents, Hearsay Notice, the Witness Statement of Ms Liu Tak Yee (“Ms Liu”), AXA’s Senior Claims Services Specialist, a Motor Survey Report dated 13 June 2017 (the “Report”) prepared by Ms Sammy WH Lee of Toplis & Harding (Hong Kong) Limited (the “Motor Surveyor”).

10.Given the defendants took no interest in these proceedings from the beginning, I saw no reason why the hearing for assessment of damages should not proceed.

The Evidence

11.At the hearing, Ms Liu was called by the plaintiff to give evidence and she adopted the contents of her witness statement as part of her evidence.

12.According to Ms Liu, on the day of the Accident, the plaintiff’s car was insured by the plaintiff with AXA under a motor policy (the “Policy”). Ms Liu also stated that the plaintiff notified the Accident to the insurer after the Accident. Upon receipt of the plaintiff’s Motor Insurance Claim Form and the quotation for repair costs from a garage ie Zung Fu Company Limited (“Zung Fu”), AXA instructed the Motor Surveyor to inspect the plaintiff’s car on 7 June 2017 to assess its reasonable repair costs and reported its adjusted repair costs to AXA by way of the Report. As per the Order, the Report was adduced as evidence at the trial without calling the maker thereof.

13.The plaintiff’s car was observed (and photos were taken as record) by the Motor Surveyor and it was reported, inter alia, that its rear body sustained impact damage. The items that required respectively replacement and repair are particularized at p 2 of the Report.

14.According to the Report and Ms Sammy Lee, the Director of the Motor Surveyor, reasonable and adjusted costs of repair of the plaintiff’s car are in the respective sum of HK$70,803.20 for labour and the sum of HK$83,838.70 for parts, making a total adjusted repair costs of HK$154,641.90.

15.In addition, Ms Lee opined that the pre-accident market value of the subject vehicle ranged from HK$180,000 to HK$190,000. Thus, the estimated repair cost was slightly lower than the pre-accident market value of the plaintiff’s car. There is no evidence on the scrap value of the plaintiff’s car.

16.Under the Policy, the plaintiff was required to pay his own excess in the sum of HK$5,000. He was also responsible to pay the depreciation value of HK$20,959.70. In other words, the plaintiff was required to contribute HK$25,959.70 in total towards the repair of his car.

17.Upon completion of the inspection, Zung Fu proceeded to repair the plaintiff’s car. As a result, the plaintiff and AXA paid Zung Fu paid the respective sums of HK$25,959.70 and HK$128,682.20 in July and December 2017. Receipts were issued by Zung Fu on 28 and 20 December 2017 respectively. At the hearing, I was informed by Mr Tse that AXA paid Zung Fu on 5 December 2017 but there was no evidence in support of such date.

18.The plaintiff now claims a total sum of HK$155,586.90 plus interest and costs from the 1^st and 2^nd defendants as loss and damage suffered as a result of the Accident. The breakdown of the claims is as follows:-

(a)  Repair costs of plaintiff’s car: HK$154,641.90

(b)  Motor survey fee: HK$900

(c)  Vehicle registration search fee: HK$45

19.I accept the unchallenged evidence of Ms Liu and the unchallenged evidence and expert opinion of the Motor Surveyor as stated in the Report. I also find that the plaintiff and/or his insurer have incurred money on the above items as they are supported by the relevant receipts.

Reasonable to Carry Out the Repair?

20.The next question that I have to consider is whether it was reasonable for the plaintiff to repair his car in the circumstances of this case.

21.The plaintiff’s vehicle was a 2013 Mercedes Benz A200 model and at the time of the Accident, it had been used for 5 years. The mileage of the car was 83,869 km. As stated above, the plaintiff was the third owner. According to the Motor Surveyor, the pre-accident market value of it was HK$180,000 to HK$190,000. The repair cost of HK$154,641.90 represented more than 80 - 85% of the market value of the vehicle.

22.The plaintiff could have replaced his vehicle with a similar one bearing in mind that there should be some scrap value of the damaged car. If the scrap value of the damaged car was, say HK$40,000, it may not be economical for the plaintiff to carry out the repair. However, I note that neither Ms Lee nor the Motor Surveyor provided the scrap value of the plaintiff’s damaged vehicle. When asked, Mr Tse submitted that it is the common practice of the motor surveyor to provide the scrap value in a total loss situation only.

23.As stated by the learned editors of McGregor on Damages, 21^st ed, §37-004:

“The cost of repair is, however, appropriate only if in the circumstances it is reasonable for the claimant to effect the repair; it might be cheaper to buy a replacement on the market and sell the damaged item for what it will fetch or the claimant might have intended to sell the damaged item and the reduction in market price from the damage is less than the cost of repair ...”

24.In Darbishire v Warran [1963] 1 WLR 1067 at 1071, Harman LJ stated:

“The principle is that of restitutio in integrum, that is to say, to put the plaintiff in the same position as though the damage had not happened. It has come to be settled that in general the measure of damage is the cost of repairing the damaged article; but there is an exception if it can be proved that the cost of repairs greatly exceeds the value in the market of the damaged article. This arises out of the plaintiff's duty to minimise his damages. Were it otherwise it would be more profitable to destroy the plaintiff’s article than to damage it. In the latter cases the measure is the value of the article in the market and this, of course, supposes that there is a market in which the article can be bought. If there is none, then the cost of repairs may still be claimed ...” (emphasis added)

25.It appears from the above authorities that the test is whether the cost of repair “greatly exceeds” the value of the market value of the damaged article. In that connection, the court should also take into account of the scrap value of the damaged article.

26.In this case, there is no evidence for me to come to the conclusion that the costs of repair greatly exceeds the pre-accident market value of the plaintiff’s car. Further, if a defendant wishes to set up a positive case to show that the plaintiff failed to mitigate his loss or damage, such allegations must be specifically pleaded with supporting particulars (see O18 r12(1)(c) of the Rules of District Court and Hong Kong White Book 2023, Note 18/8/28). In this instance, the defendants did not make the plea and adduce the relevant evidence.

27.In the absence of any challenge to the evidence before me, I shall hold that the 1^st and 2^nd defendants shall be liable for the claimed sum of HK$154,641.90 on the costs of repair.

28.In the future, a plaintiff would be well advised to consider adducing evidence on the scrap value of the damaged vehicle. Failure to do so might result in the court drawing adverse inference against him.

The Case Against the 2^nd defendant

29.As the 1^st defendant was the negligent driver which caused the Accident, she is obviously liable to the plaintiff for the loss and damage suffered by him.

30.I shall now consider whether the 2^nd defendant, being the owner of the car driven by the 1^st defendant at the time of the Accident, is equally liable to the plaintiff. As noted above, it is pleaded in the Endorsement of Clam that the 2^nd defendant should be vicariously liable for the 1^st defendant’s negligence as the former was the employee, servant and/or agent of the 2^nd defendant. However, Ms Liu said nothing in her witness statement in this regard.

31.In Chong Ngan Seng v China Harbour Engineering Company Ltd & Others CACV 54/2012, 1 February 2013, Fok JA (as his Lordship then was) stated at §28 that:

“The question of agency is one of fact. In Rambarran v Gurrucharran [1970] 1 All ER 749, the Privy Council (on an appeal from Guyana) established the principle that, although ownership of a motor vehicle (which at the time of an accident is being driven by another for his own purposes and without the knowledge of the owner) is prima facie evidence that the driver was the agent or servant of the owner and that the owner is therefore liable for the negligence of the driver, that inference may be displaced by evidence that the driver had the general permission of the owner to use the vehicle for his own purposes, the question of service or agency on the part of the driver being ultimately a question of fact.”

32.In Wong King Tai, the Adminstratrix appointed by order to represent the estate of Wong Tak Luk, deceased v Lau Ka Kui and Another HCPI 488/1996, 24 November 1998, Deputy Judge de Souza stated:

“Ownership of a motor vehicle at the time of an accident affords prima facie evidence that the driver was the agent or servant of the owner, but that presumption may readily be displaced by any credible evidence from whatever source pointing the other way: Rambarran v Gurrucharran [1970] 1 All ER 749 (PC). In the circumstances of the case, there being a complete absence of any evidence bearing on the issue, such an inference can and should be drawn. I, therefore, hold that the 1^st defendant was the servant or agent of the 2^nd defendant when he collided with the deceased. The plaintiff’s onus of proving vicarious liability has been discharged and the 2^nd defendant is accordingly liable in damages for the loss sustained.” (emphasis added)

33.Similarly, Mr Justice Liu said in Ng Loy Yau v Wong Tin Sang & Others HCA524/1978, 18 April 1980 that:

“There is no evidence that at the time of the accident the 1^st defendant was agent or servant of the 3^rd defendant or was driving the car with the permission of or for any purpose connected with the garage. However, in the absence of any explanation, an inference may be drawn from ownership that the driver was the servant or agent of the owner. See Rambarran v. Gurrucharran. But in this case, the 2^nd defendant owner readily offered us his version.” (emphasis added)

34.In the present case, given the 2^nd defendant was the owner of the car driven by the 1^st defendant at the time of the Accident, there is prima facie evidence that the 1^st defendant was the agent or servant of the 2^nd defendant. In the absence of any evidence rebutting the prima facie evidence, I would draw the inference and find that the 1^st defendant was the agent of the 2^nd defendant. In the circumstances, the 2^nd defendant is vicariously liable for the 1^st defendant’s negligence. Therefore, I find that the 2^nd defendant and the 1^st defendant should be jointly and severally liable for the plaintiff’s loss and damages.

Conclusion

35.I shall enter final judgment for the plaintiff against the 1^st and 2^nd defendants jointly and severally liable in the sum of HK$155,541.90 with breakdown as follows:-

(a)  Repair costs of plaintiff’s car: HK$154,641.90

(b)  Motor survey fee: HK$900

36.However, I am not satisfied that, technically, the plaintiff’s damages should include the fee for the vehicle registration search of the 2^nd defendant’s vehicle. As stated in the witness statement of Ms Liu, the search was obtained for the purpose of the present claim against the 2^nd defendant and the fee should be part of the plaintiff’s costs to be taxed but not part of his damages.

37.As to interest, Mr Tse for the plaintiff submitted that AXA made the payment on 5 December 2017. However, there is no evidence before the court to substantiate that date. The only evidence before the court is the receipt dated 20 December 2017 issued by Zung Fu which evidences that AXA had paid the major part of the repair costs to Zung Fu on that day. I shall therefore award interest on the sum of HK$155,541.90 at the best lending rate of HSBC from 20 December 2017 to the date of this judgment and thereafter at judgment rate until payment.

38.I am of the view that there is no reason why costs should not follow event. The 1^st and 2^nd defendants shall pay the plaintiff’s costs of the action including the costs of the Assessment of Damages (and all costs reserved orders) on party and party basis.

39.To avoid disproportionate expenses of formal taxation and the possible delay involved, I agree with the plaintiff that this case calls for summary assessment. Looking at the statement of costs before me, I summarily assess the costs payable by the 1^st and 2^nd defendants be in the sum of HK$65,000.

40.In short, I order that the 1^st and 2^nd defendants do pay the plaintiff the sum of HK$155,541.90 together with interest thereon at the best lending rate of HSBC from 20 December 2017 to the date of this judgment and thereafter at judgment rate until payment together with costs of the action summarily assessed at HK$65,000.

Mr CP Tse, of Leung & Lau, Solicitors LLP, for the plaintiff

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