Liu Ming Pang v. Fung Kon for May

DCCJ 4611/2021

[2024] HKDC 957

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4611 OF 2021

————————————

BETWEEN

————————————

———————————————

ASSESSMENT OF DAMAGES

———————————————

Introduction

1.This is an assessment of damages of the damage caused to a vehicle in a traffic accident.

2.The Plaintiff is the registered owner of a private car with the registration number SW3600 (the “Vehicle”), who claims damages arising out of a traffic accident on 31 July 2019 at or near Chainage 19.5B, Tolo Highway (towards Sheung Shui), Tai Po, New Territories (the “Accident”). In the Accident, the Vehicle was hit and damaged by a light goods vehicle with the registration number TB120 (“LGV”) causing loss to the Plaintiff. At the time of the Accident, the Defendant is driver and the registered owner of LGV.

3.On 29 September 2021, the Plaintiff issued a Writ of Summons to claim from the Defendant loss and damages caused in the Accident.

4.As no notice of intention to defend was given by the Defendant, interlocutory judgment was entered against the Defendant with damages to be assessed and costs on 24 February 2022.

5.On 2 December 2022, the Plaintiff issued a Notice of Appointment of Assessment of Hearing of Damages. Directions were given as to trial. At the hearing of assessment of damages, the Defendant was absent.

6.Mr Tse appearing for the Plaintiff has confirmed that the Order dated 21 September 2013 setting out the date and time of the hearing, the hearing bundle, and the Plaintiff’s written submissions had all been served on the Defendant.

7.Having considered the affirmation of service filed on the Plaintiff’s behalf on 12 December 2023, I am satisfied that, the Defendant had been properly notified of the hearing. I proceed with the hearing in the absence of the Defendant.

The Plaintiff’s Claim

8.The Plaintiff’s claim is for HK$ 146,081.90, which breaks down into (a) HK$ 144,581.90 being the repair costs of the Vehicle, and (b) HK$ 1,500 being the motor survey fee.

9.By way of an Order dated 22 March 2023, the Court gave leave for the Plaintiff to adduce the Motor Survey Report (the “Report”) prepared by Mr Sammy W H Lee of Toplis and Harding (Hong Kong) Limited (the “Motor Surveyor”) dated 23 August 2019 without calling the maker thereof.

10.Ms Liu Tak Yee (“Ms Liu”) gave evidence as the Plaintiff’s witness at the hearing of assessment of damages. At the material times, she was the Senior Claims Services Specialist of AXA General Insurance Hong Kong Limited (the “Insurer”). She was responsible for handling the claim and gave evidence relying on the documents and records of the Company. She adopted her witness statement filed on 6 June 2023 as her evidence and answered the questions raised by the Court.

11.Ms Liu’s evidence is that, the Insurer received the claim from the Plaintiff on 2 August 2019 and a quotation of the garage Hi Line Motor Work (the “Garage”) dated 9 August 2019 which estimated HK$ 237,677 for the repair of the Vehicle.

12.The Insurer then instructed the Motor Surveyor to inspect the Vehicle to assess its repair costs. On 16 August 2019, there was an inspection of the Vehicle and it was reported inter alia that its front and rear body has sustained impact damage. Photos were taken at the inspection and were included in the Report.

13.According to the Report, the Motor Surveyor estimated the costs of repair of the Vehicle at HK$ 187,775.90, with HK$ 35,000 being labour costs and the sum HK$ 152,775.90 for parts. The final assessment of repair costs in the Report is HK$ 149,581.90, which is the said estimated costs less HK$ 38,194 being a 25% depreciation rate.

14.Further, the Motor Surveyor estimated the pre-accident market value of the Vehicle is in the range of HK$ 500,000 to 510,000, which justifies the repair.

15.After the said inspection, the Garage accepted the adjustment by the Motor Surveyor and proceeded to repair the Vehicle. After conducting the repair of the Vehicle, the Garage received HK$ 144,581.90, out of which HK$ 136,581.90 was paid by the Insurer and HK$ 8,000 was paid by the Plaintiff as the policy excess.

16.At the hearing, Ms Liu gave evidence to explain the difference of HK$ 5,000 between the final assessed repair costs of HK$ 149,581.90 and the actual amount received by the Garage of HK$ 144,581.90. She said that, the said HK$ 5,000 should be the further policy excess to be paid by the Plaintiff but the sum was eventually waived by the Garage. She could not find any records of payment for that sum. In any event, the Plaintiff only claims the sum of HK$ 144,581.90 under this head.

17.The Plaintiff produced receipts showing the two payments made to the Garage, first being the sum of HK$ 136,581.90 was paid by the Insurer on 5 September 2019, and the second being the sum of HK$ 8,000 paid by the Plaintiff on 16 November 2019.

18.Ms Liu gave evidence that, the Insurer has also paid Toplis and Harding (Hong Kong) Limited HK$ 1,500 for the inspection of the Vehicle and the assessment of the repair costs. The sum claimed is also supported by receipts of payment.

19.Ms Liu’s evidence is unchallenged by the Defendant. I accept her evidence and the expert evidence of the Motor Surveyor stated in the Report in their entirety.

20.Therefore, I find that the Plaintiff and/or the Insurer have incurred (a) repair costs of the Vehicle at HK$ 144,581.90, and (b) the motor survey fee at HK$ 1,500. The sums are reasonable and the Plaintiff is entitled to recover the sums in full.

Orders Made

21.Accordingly, I assess the damages and award the total sum of HK$ 146,081.90 to the Plaintiff.

22.As for interests, Mr Tse appearing for the Plaintiff submits that, interest should run from 5 September 2019, which is the date where the Insurer paid the large part of the repair costs of the Vehicle to the Garage. He further submits that, the Plaintiff only seeks interest rate at the best lending rate of HSBC.

23.It is the overarching principle that, interests should be awarded to the plaintiff, not as compensation for the damage done, but for being kept out of the money which ought to have been paid to him (See Hong Kong Civil Procedure 2024, Volume 1, at §6/L/10 at [111]).

24.I accept the submissions of Mr Tse in respect of the pre-judgment interest sought. Therefore, I award interest on the sum awarded at the best lending rate of HSBC for the period from 5 September 2019 to the date of this judgment, and thereafter at judgment rate until payment in full.

25.As for costs, the Plaintiff asked for summary assessment for costs of the whole action including costs of the assessment and all costs reserved. Having considered the Plaintiff’s Statement of Costs dated 1 December 2023, I summarily assess the Plaintiff’s costs of these proceedings at HK$ 67,890.

Mr C P Tse of Leung & Lau, Solicitors LLP, for the Plaintiff

The Defendant was not represented and did not appear