Fung Wing Ying v. Cheng Man Tak Trading As Hop Fat Hong
Read the full judgment text of DCCJ 3091/2022 on BabelCite. This District Court judgment was delivered on 17 April 2026.
1. In this action, the Plaintiff sues the Defendant, a sole proprietor operating a petrol service station, in contract and negligence for damages, alleging that the latter has wrongly refuelled her diesel BMW private car (“ the Car ”) with petrol.
Cites 14 cases
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DCCJ 3091/2022 [2026] HKDC 625 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 3091 OF 2022 -------------------------------------- BETWEEN
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------------------------------- JUDGMENT ------------------------------- I. INTRODUCTION 1.In this action, the Plaintiff sues the Defendant, a sole proprietor operating a petrol service station, in contract and negligence for damages, alleging that the latter has wrongly refuelled her diesel BMW private car (“the Car”) with petrol. II. PLAINTIFF’S PLEADED CASE 2.The Plaintiff was and still is the registered owner of the Car, being a BMW model X1 sDrive19d diesel engine private car. 3.At or about 2:36 am on 1 October 2021, the Plaintiff drove the Car to a petrol service station under the trading name Hop Fat Hong at Lot No 1985 in Survey District No 2, Clear Water Bay Road, Sai Kung, New Territories (“the Station”) for refuelling. At the Station, the Plaintiff talked to a station staff, namely 張伯峰 (“Mr Zhang”), who was ostensibly an employee of the Defendant, and ordered in Punti to refuel the Car with diesel for HK$200, and Mr Zhang accepted the order. After ordering the refuel, the Plaintiff went to the toilet at the Station. When the Plaintiff returned to the Car, she noticed that Mr Zhang had wrongly and mistakenly refuelled the Car with petrol for HK$200 (“the Incident”). The wrong injection of fuel was immediately brought to the attention of Mr Zhang and subsequently reported to the station manager. Upon the Plaintiff’s complaint and discussion with the Defendant, Mr Zhang on behalf of the Defendant signed a written note (“the First Note”) for loss and damage, with the station manager signing a second note dated 1 October 2021 (“the Second Note”). The First Note and the Second Note are collectively referred to as the “Two Notes”. The Car was towed to BMW service centre (“BMW Service Centre”) for inspection and repair. 4.Upon Mr Zhang’s acceptance of the Plaintiff’s order for refuelling the Car with diesel for HK$200, an oral agreement was entered by the Plaintiff and the Defendant (“Contract for Refuel Service”). 5.The Plaintiff relies on section 16(2) of the Sale of Goods Ordinance (Cap 26) (“SOGO”) and avers that there is an implied condition in the Contract for Refuel Service that the fuel supplied is of merchantable quality, in that they should be (1) fit for the purpose or purposes for which goods of that kind are commonly bought, and (2) free from defects (including minor defects) as it is reasonable to expect having regard to the description applied to them, the price and all the other circumstances. 6.Further or alternatively, the Plaintiff relies on section 16(3) SOGO, in that:-
7.Still further or alternatively, the Plaintiff relies on section 5 of the Supply of Service (Implied Terms) Ordinance (Cap 457) (“SS(IT)O”) and avers that there is an implied term that the Defendant shall carry out the supply of refuel service with reasonable care and skill. 8.By wrongly and mistakenly injecting petrol into the Car, and thus causing damage to the Car, the Defendant was in breach of the express term of the Contract for Refuel Service and the implied conditions under section 16(3) of SOGO and section 5 SS(IT)O. 9.By supplying the wrong fuel (ie petrol), the Defendant was in breach of the implied condition under section 16(2) SOGO for failing to supply goods of merchantable quality. 10.Still further or alternatively, the Incident was caused by the negligence, namely the breach of duty of care by Mr Zhang, for which the Defendant was vicariously liable. 11.Moreover, according to the Two Notes, the Defendant admitted the wrongdoing and agreed to be fully responsible for the loss and damage of the Plaintiff as a result of the Incident. 12.In spite of the Two Notes and the Plaintiff’s repeated requests, the Defendant has failed and/or refused to be fully responsible for the loss and damage caused to the Car. 13.The Plaintiff has suffered loss and damage:-
III. DEFENDANT’S PLEADED CASE 14.Save and except the admission of:-
15.The Defendant expressly denies that he was fully responsible for the loss and damage caused to the Car pursuant to the Two Notes. With a view to resolving the matter amicably and expeditiously, the Defendant contacted a motor service company called Auto Tech Service Co (“Auto Tech”) for clearing the fuel from the engine of the Car and carrying out other ancillary repairs related to the fuel injection, while such service could be completed and the Car could be returned to the Plaintiff within 1 to 2 working days. The said arrangement was offered through the Defendant’s staff and accepted by the Plaintiff, who also accepted to have the Car towed to Auto Tech from the Station at the Defendant’s costs and expense. On the mutual understanding that the Plaintiff should not restart the engine of the Car and that the Defendant would bear and settle the fees charged by Auto Tech, the Plaintiff proceeded to draw up some handwritten notes and insisted the same to be signed by the Defendant’s staff. The notes were signed in the early hours on 1 October 2021 while the Defendant and/or his staff did not have the opportunity to seek independent legal advice as to the contents and legal implications thereof. 16.Despite the mutual agreement and understanding on the aforesaid arrangement, the Plaintiff changed her mind and insisted to tow the Car to BMW Service Centre. According to the understanding of the Plaintiff, the repair costs to be charged by BMW Service Centre would be in the region of HK$9,000. 17.On 5 October 2021, the Plaintiff informed the Defendant’s station manager that according to BMW Service Centre, given that the Car had not been switched on after the refuelling, the drivetrain of the Car remained undisturbed. 18.On 19 October 2021, an inspection of the Car was conducted at the BMW Service Centre by Toplis And Harding (Hong Kong) Ltd (“Toplis”), the loss adjuster appointed by the Defendant. Toplis compiled a motor survey report dated 8 November 2021, opining that based on the age and condition of the Car, a depreciation rate of 25% should be borne by the Plaintiff. The total repair costs of the Car, as agreed with BMW Service Centre, should not exceed HK$28,168.70. 19.The Defendant avers that the Plaintiff failed to act reasonably to mitigate loss and damage. The Plaintiff unreasonably refused to allow Auto Tech to repair the Car on 1 October 2021. Alternatively, the Plaintiff unreasonably withheld to carry out repair of the Car by BMW Service Centre soon after the inspection by Toplis on 19 October 2021. 20.By his solicitors’ letter dated 18 November 2021, the Defendant made an open offer at HK$31,128.70 to the Plaintiff, together with a cheque of the same amount payable to the Plaintiff. A copy of the letter was subsequently sent to the Plaintiff’s solicitors. 21.By letter dated 9 December 2021 from the Defendant’s solicitors to the Plaintiff’s solicitors, the Defendant redelivered the cheque payable to the Plaintiff in the sum of HK$31,128.70. 22.By letter dated 11 January 2022 from the Defendant’s solicitors to the Plaintiff’s solicitors, the Defendant unconditionally offered to pay the Plaintiff a sum of HK$48,200.00 in full and final settlement of the Plaintiff’s intended claim. The Plaintiff refused to accept the offer, and commenced these proceedings on 10 August 2022. The Defendant avers that the said sum is sufficient to satisfy the Plaintiff’s claim. 23.By a Notice of Sanctioned Payment dated 19 October 2022, a sum of HK$48,200.00 was paid into Court and notice was given to the Plaintiff through her solicitors on 19 October 2022. The Defendant relies on the statutory defence of tender under section 30 of the Law Amendment and Reform (Consolidation) Ordinance (Cap 23) (“LARCO”). 24.The Defendant avers that by virtue of the matters pleaded, the Plaintiff shall not be entitled to any damages, interest, costs and/or other relief whether as pleaded or at all. In the event that damages to be assessed does not exceed the sum paid into Court by the Defendant, the Plaintiff’s claim shall be dismissed with costs to the Defendant. 25.Further or alternatively, if, in the event that damages assessed exceeds HK$48,200.00 but below HK$75,000.00, the Plaintiff’s claim falls within the jurisdiction of the Small Claims Tribunal and the Plaintiff shall not be entitled to costs of the proceedings on the District Court scale. IV. ISSUES 26.According to the Agreed List of Issues filed by the parties on 30 December 2025, the issues for determination at this trial are:-
V. TRIAL 27.The trial took place on 21, 22, 23, 26 and 30 January 2026. (A) Factual Witnesses 28.The Plaintiff had two factual witnesses, namely the Plaintiff herself (PW1) and Mr Kwan Ho Yen Leslie (“Mr Kwan”) (PW2). 29.The Plaintiff has been driving since 19 or 20 years old. Before acquiring the Car on an online trading platform in 2019, the Plaintiff had been driving a Mercedes-Benz B180 grey car, similar to the Car, but that Mercedes-Benz was driven by petrol. 30.Mr Kwan is a senior repair consultant of BMW (Hong Kong), having worked in the repair department for 29 years. Mr Kwan was the repair consultant for the Plaintiff in respect of the Incident. 2 days before the commencement of trial, this Court acceded to the request of the Plaintiff to issue a writ of subpoena to Mr Kwan to testify at trial. The writ of subpoena was required not because of Mr Kwan’s unwillingness to testify, but as a formality so that he could be released from work during the office hours to testify in this Court. 31.The Defendant called two factual witnesses, namely Mr Leung Tsz Kin (“Mr Leung”) (DW1) and the Defendant himself (DW2). 32.Mr Leung is the head of the Station. He started working as the head of the night shift session (from 11 pm to 7 am) of the Station in April 2012. His primary duties include the supervision of the daily operation of the Station, as well as deployment of staff members for refuelling who make report of their work to him. Mr Leung is also responsible for administrative and clerical work, complaint handling, and management and training of staff members. Mr Leung is directly accountable to Mr Cheng, ie the Defendant, and the Defendant makes important decisions on operation. At the material times, Mr Leung was the senior head of the Station, working from 3 pm to 11 pm or 12 midnight. 33.In relation to the Defendant, since 1990 he has been operating Hop Fat Hong as sole proprietor to run Esso petrol station with the franchise of ExxonMobil Hong Kong Limited. Since 1997, Hop Fat Hong has been operating the Station at the current location. The Defendant has had 34 years’ experience of operating a petrol station. In the first 10 years, the Defendant worked at the petrol station for 12 to 16 hours. By handling everything himself, he is familiar with all affairs of a petrol station. (B) Expert Witnesses 34.By his Order made on 28 March 2024, Master Maurice Lam granted leave to the parties to adduce expert evidence on quantum in relation to the following issues:-
35.The Plaintiff called Mr Hui Wing Ka Benny (“Mr Hui”) (PW3), and the Defendant called Mr Lee Wing Ho Sammy (“Mr Lee”) (DW3). 36.Mr Hui is the General Manager of a loss adjuster called Anderson & Ashe Motor Survey and Adjusters Company (“Anderson”) and a qualified motor vehicle surveyor. He is an Incorporate Engineer and a member of the Institute of the Motor Industry, the Institute of Road Transport Engineers and the Society of Operations Engineers. He has had over 35 years’ experience in the surveying of motor vehicles. His professional duties include motor vehicle survey, loss adjustment, insurance claim assessment, vehicle valuation and advice on damages and market valuation. He has testified in Court as an expert. 37.Mr Lee is the director of the loss adjuster Toplis, having joined the company in 1991. He has a certificate in motor engineering. His area of specialty is handling motor surveys and investigation works as well as estimating vehicle damages. Prior to joining Toplis, Mr Lee worked in car dealer’s workshops, namely BMW and Volvo, as an estimator for about 6 years. Having been promoted as director of Motor Department of Toplis in 1995, Mr Lee has been in charge of the whole department, supervising the staff for their daily operation of the department. He has also testified in Court as an expert. VI. ASSESSMENT OF FACTUAL AND EXPERT EVIDENCE 38.The Defendant submitted that the general approach on fact-finding and assessment of credibility is set out by DHCJ Eugene Fung SC (as he then was) in Hui Cheung Fai v Daiwa Development Limited HCA 1734/2009, unreported, 8 April 2014, at paragraphs 77 to 83: -
39.The Defendant also relied on Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corporation Ltd [2007] 3 HKLRD 439 at 480J-481H, where Stock JA (as he then was) stated that comparison with contemporaneous documentation is always an aid to reliability of oral testimony, unless there is reason to believe that the documentation is contrived or materially incomplete, and the truth can best be tested by reference to contemporaneous documentation where it exists, or to its absence where one would expect it to have been created, as well as to inherent probabilities, having regard to all the facts that are known. 40.The Defendant further referred to Luen Ming Supreme Fabricator Company Limited v Ng Chi Wah [2021] HKCFI 1501, where Recorder Yvonne Cheng SC (as she then was) summarised the factors relevant to evaluation of a witness’ evidence, including evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleading, disclosure and evidential shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence and selective disclosure. 41.In relation to expert evidence, the Defendant cited the approach of Lam J (as he then was) in Chinachem Charitable Foundation Ltd v Chan Chun Chuen HCAP 8/2007, unreported, 2 February 2010, at paragraphs 484 to 493:-
42.The Plaintiff did not dispute these principles. 43.As apparent from my findings below, the evidence, and therefore the credibility, of the Plaintiff is important on the resolution of the issue of liability (Issue 1), the issue of the duty to mitigate her loss (Issue 3) and the issue of quantum (Issue 4). 44.The Defendant submitted that the Plaintiff was unreliable, her testimony was marred by self-contradictions, internal inconsistencies and inherent implausibility, and her claims and contentions were overwhelmingly unsubstantiated. The Defendant further relied on MA (Somalia) v Secretary of Statement for the Home Department [2010] UKSC 49, where Sir John Dyson cautioned, at paragraphs 31 to 33, that where a claimant tells lies on a central issue, his or her case will not be saved by general evidence unless that evidence is extremely strong, and where a totally incredible account of the relevant facts has been given, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. 45.However, as acknowledged by Sir John Dyson himself, much depends on the bearing that the lie has on the case, and people lie for many reasons. It is trite that a lie does not necessarily render the entirety of the witness’ evidence to be rejected, and the actual case may remain good irrespective of the lie. 46.In my judgment, despite the Defendant’s attacks, the Plaintiff was generally credible and reliable, a conclusion based on findings in the subsequent parts of this judgment, notably the following:-
47.Mr Kwan was an independent witness, and he frankly admitted not having inspected the Car or extracted the mixed fuel sample himself. The Defendant submitted that his evidence on the condition of the Car and the cause of any damage was hearsay and inadmissible to prove the truth of its contents. I disagree. As submitted by the Plaintiff, this is a matter of weight, as hearsay evidence, if relevant, is certainly admissible in civil litigation. I find Mr Kwan as a straightforward and honest witness. 48.Mr Leung acted mainly as the middleman between the Plaintiff and the Defendant to handle the Incident and the repair issue. Meanwhile, the Defendant, upon report from Mr Leung, proactively took steps for arranging the Car to be repaired at Auto Tech even on a public holiday, subsequently arranged Toplis (through Mr Lee) to inspect the Car and prepare revised proposal and quotation for repair, and proposed a draft agreement which was almost struck with the Plaintiff on or about 29 October 2021. The Defendant was frank in admitting under cross-examination that he was responsible for the act of his staff member Mr Zhang including the First Note, but this Court does not accept that he instructed the signing of the Second Note under the pressure of the Plaintiff and her relatives. Likewise, I do not accept Mr Leung’s evidence that the Plaintiff had indicated to sign the Second Note only upon the cancellation of the First Note. Apart from the said areas of their testimonies, I find both Mr Leung and the Defendant generally credible and reliable. 49.Turning to the experts, instead of indiscriminant defence of the Plaintiff’s position, Mr Hui frankly admitted that he was told that the mixed fuel sample had been obtained from the fuel tank, and that the fuel in the fuel tank could not move to the fuel line as liquid or by evaporation or by diffusion if the Car had not been restarted. I am satisfied that Mr Hui was an independent and impartial expert. 50.Mr Lee, in his examination-in-chief, corrected his first report by saying that mixed fuel was found at the fuel tank only, as opposed to also the injectors, and further testified that the error had been discovered after signing the Statement of Truth of the Joint Expert Report, but he had parked the matter until realising that this action was going to trial. This was subject to great criticism by the Plaintiff. I accept that it was simply a clerical error, having considered the matter in the round especially the experts’ common view that the mixed fuel could not move out of the fuel tank without restarting the Car, as well as the absence of objective evidence such as fuel sample extracted from the injectors or documents from BMW showing that the fuel at the injectors was checked. I find Mr Lee independent and impartial. VII. ISSUE 1 – LIABILITY 51.There is no dispute that petrol was wrongly refuelled into the diesel-driven Car. The question is whether the Defendant is liable to the Plaintiff, or whether the Plaintiff herself is to be blamed. 52.The Defendant submitted that the burden lies throughout on the Plaintiff to prove, on a balance of probabilities, that her clear and unequivocal instruction was to supply diesel and that the attendant negligently supplied petrol instead. See Yau Lai Wah (尤麗樺) v Wong Kan Yu (黃瑾瑜) [2021] 3 HKC 237 at 240F-I; Music Holdings Property HK Ltd (formerly known as Beckton International Limited) & Another v Ooi Lean Choo (also known as Alsie Lau) & Others [2020] HKCFI 1312 at paragraph 55. I agree. (A) The Incident 53.The Plaintiff (PW1)’s evidence-in-chief was that on 1 October 2021, around 2:36 am, she was driving the Car along Clear Water Bay Road for Sai Kung. She decided to refuel the Car at the Station along the way. Having driven into the Station, the Plaintiff informed the staff (later known to be Mr Zhang) to refuel HK$200 of diesel, and then she got off the Car for toilet. Upon exiting from the toilet, the Plaintiff saw that Mr Zhang wrongly refuelled the Car with HK$200 of petrol. Since Mr Zhang refuelled the Car with the wrong fuel, the Plaintiff did not start the engine of the Car to avoid any damage to the engine. 54.When cross-examined about the Incident, apart from testifying that there was no passenger on the Car and that it was Mr Zhang who refuelled the Car, the Plaintiff could not remember details such as whether there was any pet on the Car, whether she rolled down the car window and requested refuelling, and whether Mr Zhang had already inserted the fuel gun into the Car before she reached the toilet. However, the Plaintiff denied that she could not remember whether instructing to buy petrol or diesel due to tiredness. She saw Mr Zhang holding a coloured fuel gun (which was for refuelling petrol) and retrieving the same from the Car when she walked out of the toilet. She further testified that the fuel tank lid of the Car indicated that the engine was diesel-driven, but admitted not having adduced such evidence. 55.Mr Zhang was not called to testify at trial. According to the evidence-in-chief of Mr Leung (DW1), Mr Zhang left his employment with the Defendant on 30 June 2024. He was an experienced refuelling staff, having worked for the night shift for many years. Before the Incident, Mr Zhang had seen the Plaintiff refuelling at the Station from time to time, and had always known the Plaintiff to be driving a petrol car. 56.Moreover, according to the evidence-in-chief of both Mr Leung (DW1) and the Defendant (DW2), they were not at the Station when the Incident happened. Both Mr Leung and the Defendant testified in-chief that after the Incident, they had checked the relevant closed-circuit television video, but the same could not record any sound, and so the conversation between Mr Zhang and the Plaintiff right before the wrong refuelling could not be ascertained. 57.In other words, on the subject of the contents of the conversation between the Plaintiff and Mr Zhang immediately before the Incident, there is only the oral evidence of the Plaintiff. (B) Events Immediately after the Incident 58.What happened immediately after the Incident is also relevant. 59.Under cross-examination, the Plaintiff admitted that she and Mr Leung had been discussing reasonably over the phone since around 2:38 am on 1 October 2021, during that time Mr Leung said he hoped to find a solution as soon as possible, and the Plaintiff requested a solution before leaving the Station. The Plaintiff testified that Mr Zhang and Mr Leung proactively (積極) and consistently (一直) admitted liability of wrong refuelling of the Car, and expressed their willingness to compensate, but she admitted that that was not stated in her witness statement. The Plaintiff remembered Mr Leung advising her that the Car could be towed to garage for cleaning the fuel tank to solve the problem. It was the Station’s stance and recommendation that she did not have to pay for cleaning the fuel tank, and if cleaning could not solve the problem, the Station would be responsible for subsequent compensation. 60.Turning to the evidence of Mr Leung, his evidence-in-chief was that on 1 October 2021, between 2:40 am and 2:50 am, he received a call from the cashier staff Ms Ng, informing that Mr Zhang had wrongly refuelled petrol into the diesel Car of the Plaintiff. At the time of the Incident, Mr Leung was not on duty or at the Station. The cashier staff further informed Mr Leung that Mr Zhang had immediately told the Plaintiff not to start the Car, and the head of the Station would follow up with the matter. Mr Leung then telephoned the Plaintiff directly, and he further reminded the Plaintiff not to start the Car, which was in accordance with his experience and the standard procedure and practice of the Station. Mr Leung further proposed to the Plaintiff that the Station would make arrangement for the cleaning of the fuel tank and the relevant repair of the Car by a garage, and upon handing over the car key for the arrangement, the Car could be retrieved by the Plaintiff in 1 to 2 days for her driving in the normal way. Mr Leung also reported the situation to the Defendant. Despite 1 October 2021 being a public holiday, and despite the communication taking place during the early hours, the Defendant was able to arrange the towage of the Car to a garage for immediate repair. Upon discussion with Mr Leung who made reports to and obtained instructions from the Defendant, the Plaintiff agreed to leave the car key to the Station for arranging the Car to be towed to a garage for cleaning the fuel tank (inclusive of replacement of some of the parts connecting to the fuel tank) and refuelling with diesel, while all such fees shall be paid by the Station. Moreover, the Station would refund the fuel transaction fee of HK$200. 61.The Defendant testified in-chief that upon the report by Mr Leung about his discussion with the Plaintiff, despite being the early hours of the day, the Defendant had immediately contacted Mr Wong Ka Wai of Auto Tech to make early preparation for cleaning the fuel tank of the Car. Mr Wong informed the Defendant that the garage would be closed on 1 October 2021 being a public holiday, but in order to extract the petrol from the Car and carry out the necessary repairs so that the Plaintiff could retrieve the Car as soon as possible, he agreed to complete the cleaning and repair within 1 to 2 days. Based on the Plaintiff’s confirmation of having Auto Tech to clean the fuel tank and carry out repairs and giving the car key, the Defendant estimated that the Car could be returned to the Plaintiff within 4 to 5 days, and he thus instructed Mr Leung to confirm the arrangement with the Plaintiff. Hop Fat Hong also agreed to be responsible for the transportation fee of the Plaintiff before retrieval of the Car, and further to pay directly the costs of Auto Tech. (C) Two Notes 62.Apart from the said oral evidence, this Court has to consider the Two Notes in Chinese. 63.The First Note stated that on 1 October at 2:36 am at the Station, the Plaintiff notified the Station staff to refuel HK$200 of diesel for her diesel-driven Car, and that station staff wrongly refuelled the Car with petrol. The name of Mr Zhang was filled in. It then stated that fortunately the Plaintiff exited from the toilet and saw the wrong fuel had been added, and the Car had not been restarted. It went on to say that the station staff and the company admitted fault and offered compensation. The day after, the Plaintiff would find more professional people to enquire whether the method proposed by that company, namely to clean the fuel tank, would harm the Car and whether the method was feasible. If agreeable, the Plaintiff would, through WhatsApp messages and emails, confirm with the Station to deploy Compensation No 2 to repair the Car; absent any reply, the Station shall not move the Car, and the car key shall be kept by the Plaintiff, and should there be an agreement the car key would be given to the Station. Compensation No 1 therein provided that the company shall be responsible for all taxi fares upon presentation of receipts for the period from the Plaintiff leaving the Station and during the repair of the Car. Compensation No 2 provided that the Car would be towed to the garage provided by the company for cleaning fuel tank, and the company promised the Plaintiff to be responsible for any loss and damage caused by the Incident as proved by the loss adjuster agreed by the parties. It was further stated that the original and a copy of that compensation agreement were kept by the Plaintiff while the other copy was kept by the company. The note was signed by the Plaintiff, Mr Zhang (termed “staff at fault”) and a witness being the cashier staff of the Station. 64.This Court also notices that to the left of Compensation No 2 were the words “see additional information” and “Compensation No 2 (not applicable)”, the signature of the Plaintiff and a signature which seemingly belonged to Mr Leung. As analysed below, these words and signatures should have been put down subsequent to the signing of the First Note, and probably at the time of the signing of the Second Note. 65.The Second Note was entitled “Supplementary Information” and dated 1 October 2021 at 14:25. It stated that the Plaintiff had already arranged the towage of her Car to BMW Service Centre for inspection by professionals in respect of the Incident. It went on to say that Compensation No 2 was unsuitable at that stage, which meant that the company could not make its own arrangement for the cleaning of the fuel tank by a garage. It concluded by saying that the Plaintiff would claim all her necessary transportation costs including taxi and vehicle rental fares and all miscellaneous fees on proof of receipts incurred since 1 October 2021. This Second Note was signed by the Plaintiff and Mr Leung. 66.The Two Notes were referred to as “the Compensation Undertakings” by the Plaintiff in her Statement of Claim. The Plaintiff submitted that the Two Notes constituted admission of liability by the Defendant. On the other hand, the Defendant contended that even if the Two Notes constituted admissions, they, being pre-action correspondence or documents, are not binding admissions in the action, but merely reflected the Defendant’s position taken at a particular time – She Sau Ching, Administratrix of the Estate of Fung Siu Ying Micky, Deceased v Fung Siu Chung [2025] HKCFI 4724 at paragraphs 42 to 43. In this connection, Mr Timothy Y H Wong, Counsel for the Plaintiff, acknowledged that while the Two Notes were pleaded, the Plaintiff did not sue on the Two Notes. In other words, the Plaintiff did not plead any cause of action in respect of the Two Notes. 67.In my judgment, the First Note clearly stated that the station staff (ie Mr Zhang) “wrongly” refuelled the Car with petrol, and that the station staff and the company (ie the Defendant) “admitted fault and offered compensation”. Two compensation proposals were set out, namely Compensation No 1 for the Defendant to pay the Plaintiff’s taxi fares, and Compensation No 2 that the Car would be repaired by cleaning the fuel tank at a garage to be arranged by the Defendant and the Defendant would be fully responsible for the loss caused by the Incident. Moreover, Mr Zhang, who was the person refuelling the Car with petrol, signed the First Note for the Defendant as the “staff at fault”. A literal reading of the First Note was that the Defendant admitted his liability for the Incident. 68.That said, it is trite that interpretation of a document is about the ascertainment of the objective meaning of the document, ie what a reasonable person with the knowledge available to the recipients would have understood the writer to mean. It is therefore necessary to find out the factual context relevant to the drafting of the Two Notes. (1) Objective Meaning of First Note 69.The Plaintiff testified in-chief that on the spot, the Plaintiff and Mr Zhang signed the First Note, recording the Incident, as well as the Station’s admission of fault and consent to make compensation. 70.Mr Leung testified in-chief that at around 6:00 am to 6:30 am, the Plaintiff requested to reduce the agreement in writing which shall be drafted by her. The Plaintiff’s acceptance of the Station’s arrangement shall be predicated upon the acceptance of fault by Mr Zhang. The Defendant, in order to resolve the matter amicably and quickly, instructed Mr Leung to accept the request by making Mr Zhang and the cashier staff sign the First Note drafted by the Plaintiff. Upon signing the First Note, the Plaintiff left the Car at the Station and departed. Under cross-examination, Mr Leung testified that neither the Defendant nor he had read the First Note before that was signed, and it was the Plaintiff who told him that she had to make Mr Zhang accept his mistake and discuss about compensation. Mr Leung further admitted that he acted as the middleman between the Defendant and the Plaintiff only and he could not decide the contents of the First Note. 71.The Defendant testified in-chief that he instructed Mr Leung to sign the First Note, but the Plaintiff declined to leave her car key to the Station when she left. When cross-examined about the First Note, the Defendant testified that he had asked Mr Leung to sign the same if it recorded the oral agreement to tow the Car to the garage recommended, and he acknowledged the difference between the signed First Note and the oral agreement, and further he regarded the signed agreement as not valid, though this had never been stated in his witness statement. Subsequently he testified that he trusted his staff and therefore he took responsibility for the First Note signed by Mr Zhang. 72.From above, the corroborated evidence of the Plaintiff and Mr Leung was that the Plaintiff requested the First Note to be signed on the basis that the Defendant had to admit that it was the fault of Mr Zhang who had wrongly fuelled the Car with petrol. I notice Mr Leung’s evidence-in-chief that according to his experience, for wrong refuel incidents, the car owners were normally willing to allow the Station to arrange the car to be towed to a garage for cleaning the fuel tank and filling in the correct fuel, while the Station would be responsible for the fees incurred by the garage, and would also refund the fuel transaction fee to the car owner. Since such arrangement would normally not cause any further problem, it was not the usual practice of the Station to investigate whether the wrong refuelling was caused by the car owner’s wrong instruction or the refuelling staff’s error. I also pay heed to the Defendant’s evidence-in-chief that the Station prioritised the interests of clients and so he agreed to pay all transportation fees of the Plaintiff and the costs of repair to be charged by Auto Tech. However, the Incident was not the same as the “usual situations” from the experience of Mr Leung and the Defendant. In the present case, Mr Leung clearly knew that the First Note had to be signed on the basis of admission of Mr Zhang’s fault. The Defendant also acknowledged under cross-examination that the First Note was different from an oral agreement simply for the Car to be towed to his recommended garage. Moreover, while the Station would be responsible for further compensation if further problems were found with the Car after cleaning the fuel tank, there was no evidence that the Defendant would shoulder such further compensation in the “usual situations”. Furthermore, the First Note expressly stated that the Defendant admitted liability and offered compensation, and in Compensation No 2 that after the cleaning of the fuel tank, the Defendant had to be responsible for any loss and damage (as proved by loss adjuster(s) agreed by the parties) arising from the Incident, but not just the costs for cleaning the fuel tank. This Court has not lost sight of the Plaintiff’s acceptance under cross-examination that the Two Notes did not constitute a blank cheque entitling her to any repair methods and unlimited costs, but that line of cross-examination was on the method and place of repair only. While both the Defendant and Mr Leung testified that they had not read the First Note before signing, it is inconceivable that the Defendant would have instructed Mr Zhang to sign the First Note by assuming fault on his behalf and the responsibility for compensating all losses of the Plaintiff even if he did not accept that he, Mr Leung or Mr Zhang was at fault. 73.I also reject the Defendant’s evidence that he regarded the signed agreement as not valid. First, as submitted by the Plaintiff, it has never been the Defendant’s case that the Two Notes were of no legal effect, while vitiating factors must be specifically pleaded – see Hong Kong Civil Procedure 2026, Volume 1, rubric 18/8/39. Secondly, this has never been stated in his witness statement. Thirdly, during cross-examination, the Defendant testified that he trusted his staff and therefore he took responsibility for the First Note signed by Mr Zhang. 74.Therefore, I find it as a matter of fact that the Defendant instructed Mr Leung, who in turn instructed Mr Zhang, to sign the First Note upon his admission that it was the fault of Zhang who wrongly refuelled the Car with petrol. 75.In my judgment, this fact is also a relevant factual background when considering the First Note. Objectively read, the First Note was the Defendant’s admission that the Incident was caused by the fault of his staff member Mr Zhang, and he was willing to compensate the Plaintiff for all her losses after the cleaning of the fuel tank. (2) Objective Meaning of Second Note 76.Next, I consider the objective meaning of the Second Note. 77.The Plaintiff testified in-chief that without knowledge of car repair, she took the view that a professional should be engaged for inspection of the damage of the Car and provision of repair proposal, and so she did not accept Mr Leung’s proposal. At a later time of the same day, the Plaintiff and Mr Leung signed the Second Note. 78.Under cross-examination, the Plaintiff testified that despite signing the First Note, there had been no consensus between Mr Leung and her that the Car would be towed to the garage of Auto Tech for cleaning the fuel tank under the arrangement of the Station, because she had to seek professional advice first regarding whether the fuel tank would be damaged by cleaning. Nevertheless, the Plaintiff testified that at the time of signing the First Note, the Plaintiff had discussed with one Uncle Keung, a mechanic with 5 to 6 years’ experience of car repair who worked at a familiar garage of the Plaintiff. The Plaintiff then went home and informed other family members about the Incident. She also contacted other garages which advised against cleaning the fuel tank because the fuel could move into corners and lead to fuming upon starting the Car. Later that day, the Plaintiff returned to the Station with her uncle, aunt and cousin (none having any professional knowledge of car repair) with a view to deleting Compensation No 2 and adding additional terms. It was the cousin who wrote the Second Note. 79.Mr Leung testified in-chief that the Plaintiff, having signed the First Note, changed her mind and refused to leave the car key at the Station. Mr Leung commenced work at around 11:00 am, and he saw the Car not having been started. At 2:00 pm that day, the Plaintiff and her family members arrived at the Station, and the Plaintiff said that she did not agree with the repair arrangement which she had earlier agreed. As she had decided to have the Car repaired at BMW Service Centre, she had made arrangement for the Car to be towed there. During the period of repair, the Plaintiff would need to travel by taxi and so she requested to sign additional documents. After negotiations agreed by the Defendant, the Second Note was signed by Mr Leung and the Plaintiff. 80.Under cross-examination, Mr Leung testified that he told the Defendant that the Plaintiff had changed her mind to tow the Car to BMW Service Centre and request the Defendant to pay her taxi fares during the repair, but since BMW should require about 4 to 5 days to repair and the taxi fares would not be astronomical, the Defendant then instructed Mr Leung to sign the Second Note in order to not cause too much trouble. Mr Leung did not agree that the Car should be towed to BMW Service Centre but he thought he had no choice over the Plaintiff’s decision. 81.During re-examination, Mr Leung explained that when he testified that the Plaintiff had made him sign the Second Note, the Plaintiff had actually said that he had to sign the same and cancel the previous agreement, otherwise she would find a lawyer. 82.Under cross-examination, the Defendant testified that Mr Leung had only made simple report of the matter to him over the phone, and given that the Plaintiff went to the Station with a few people and threatened to find lawyers, the Defendant felt the pressure and instructed Mr Leung to sign the Second Note so that the problem could be solved, even though it was his experience that the repair would be fast if the Car had not been started. The Defendant also reluctantly agreed to have the Car towed to BMW Service Centre instead of Auto Tech for repair. 83.I do not accept the Defendant’s evidence that he instructed the signing of the Second Note due to the pressure he felt when the Plaintiff and her family members arrived at the Station, because this was not stated in his witness statement. I also reject Mr Leung’s evidence that when the Plaintiff made him sign the Second Note, the Plaintiff actually said that he had to sign the same and cancel the First Note. It was never the pleaded case of the Defendant or the evidence-in-chief of any Defendant’s witness that the Second Note cancelled or superseded the First Note. 84.In my judgment, the Second Note, as the title suggests, was supplementary to the First Note. It made reference to Compensation No 2 in the First Note and reiterated that the Defendant shall be responsible for all transportation costs including taxi and vehicle rental fares and all other related miscellaneous expenses. The aforesaid evidence precipitating in the signing of the Second Note did not suggest that the basis of signing the same was different from that of signing the First Note. Further, considering the close proximity of time between the signing of the First Note and the Second Note, I take the view that the Second Note was signed on the same basis of admission of fault on the part of the Defendant as in the First Note. (D) Ruling on Issue 1 85.While the Defendant’s admission in the Two Notes is different from an admission made in the course of an action, the former is certainly one piece of strong evidence showing that it was Mr Zhang but not the Plaintiff who had caused the Incident. Moreover, such admission corroborates with the Plaintiff’s oral evidence that she had given the correct instruction and it was Mr Zhang who was at fault. 86.In my judgment, the Plaintiff’s oral evidence and the Two Notes including the factual background surrounding the signing of the Two Notes point to the conclusion that the Plaintiff had orally requested the refuel of diesel but Mr Zhang was at fault by wrongly refuelling the Car with petrol, and hence the Defendant is liable to the Plaintiff. 87.During his oral opening submissions, Mr Wong submitted that an adverse inference should be drawn for the Defendant’s failure to call Mr Zhang to testify. Then, during his oral closing submissions, Mr Wong retracted his position. Suffice it to say that this Court reaches the aforesaid conclusion that the Defendant was at fault and liable to the Plaintiff without resorting to any adverse inference. 88.In the premises, this Court finds that the Contract for Refuel Service was formed by the acceptance of the Defendant, through his staff Mr Zhang in the course of his employment, of the Plaintiff’s order for refuelling the Car with HK$200 of diesel. The Defendant acted in breach of an express term of the Contract for Refuel Service when Mr Zhang refuelled the Car with petrol instead of diesel. Further, by supplying and refuelling the wrong fuel, the Defendant acted in breach of the condition of supplying the correct fuel of merchantable quality and for the purpose, namely the diesel-driven Car, as implied by sections 16(2) and 16(3) SOGO, and the condition of carrying out the supply of refuel service with reasonable care and skill as implied by section 5 SS(IT)O. 89.For the further or alternative case of negligence, the Plaintiff did not plead the nature and extent of the duty of care owed by the Defendant, the breach of which by Mr Zhang giving rise to a cause of action in negligence. This Court therefore dismisses the Plaintiff’s claim in negligence or breach of duty of care. 90.As the Plaintiff is successful in alleging breach of the Contract for Refuel Service, she is entitled to damages, and the heads and amounts of which are set out in my analyses of Issues 2, 3 and 4 below. VIII. ISSUE 2 – REASONABLE COSTS OF REPAIRS TO THE CAR 91.To resolve this issue, it is necessary to consider:-
(A) Extent of Damage to Car 92.For the question of extent of damage to the Car, this Court has to analyse the evidence of Mr Kwan (PW2) and the expert evidence of Mr Hui (PW3) for the Plaintiff and Mr Lee (DW3) for the Defendant. 93.Mr Kwan testified in-chief that according to BMW company records, on 1 October 2021 the Plaintiff arranged to have the Car towed to the BMW Service Centre for inspection. According to the Plaintiff, repair to the Car was required due to wrong refuel of petrol. As 1 October 2021 was a public holiday, the Car was directly towed to the repair department of the BMW Service Centre for inspection by mechanics, with the windscreen of the Car being stuck with a notice saying “wrong refuel, do not start car” (入錯油，勿著車). According to the Repair Order, on 4 October 2021 BMW mechanics commenced the inspection of the Car which involved the removal of some parts including the fuel tank, car seats and fuel pipe. During inspection, a mixture of diesel and other liquid was found in the fuel tank, fuel pump and fuel line of the Car. Moreover, a bag of the pale blue mixture sample was obtained at the injectors of the fuel lines. As diesel was generally transparent, the pale blue mixture suggested that the diesel had been contaminated. 94.Under cross-examination, Mr Kwan testified that he did not have any qualification or hands-on experience in car repairing, and he had been working in the office and liaising with car owners. His job duties also included noting repair demands from car owners, while the cars would be checked by mechanics in the workshop who would also prepare the repair quotations. He testified that he was not at work when the Car was towed to BMW Service Centre on 1 October 2021. He went to work on 2 October 2021 and issued the Repair Order for the Car and arranged the same to be sent to the workshop. The Car was not started in BMW Service Centre. He agreed that by not starting the Car, the fuel would not leave the fuel tank. He also acknowledged that when the Car was stopped, some fuel not having reached the engine might stay in the fuel line. 95.Mr Kwan further testified under cross-examination that on 4 October 2021, the Car was inspected for the first time with simple inspection by removal of car seats and fuel tank. Afterwards, there was detailed inspection by removal of fuel pump and fuel pipe to check if there was contamination of fuels. Mr Kwan confirmed that all parts including the fuel tank, filter and lower pressure pump were checked and there was no damage or crack detected. Mr Kwan took a video of the bag of mixture collected from the Car and sent to the Plaintiff, and after that he did not participate in the car repair works. He admitted not having had any first-hand knowledge about how, where and when the bag of mixed fuel sample had been collected, and further no evidence to show that BMW had extracted mixed fuel from the fuel pump, fuel line or the injector. 96.Under cross-examination, Mr Kwan acknowledged that he did not know how the mixed fuel had gone into the fuel line. When referred to his WhatsApp conversation with the Plaintiff which was forwarded by the Plaintiff to Mr Leung [C1/13], he admitted that the statement about contaminated fuel going in and out of the fuel tank and some spillage into the fuel line was not within his personal knowledge. Mr Kwan further testified that the mixed fuel could escape from the fuel tank into the fuel pipe by evaporation, but later he frankly admitted that he had no professional knowledge to say the same and had not mentioned the same in his witness statement in any event. 97.The Defendant, when cross-examined that Mr Lee’s first report showed petrol in the fuel tank and injectors, which was inconsistent with his understanding that petrol would stay in the fuel tank without starting the engine of the Car, said he believed the report was wrong. 98.Turning to expert evidence, on 22 April 2024, Mr Hui and Mr Lee conducted a joint inspection of the Car by visual inspection only without dismantling any parts, and without any inspection of the fuel supply system. The Car had been repaired after the date of the inspection report compiled by Mr Hui on 2 December 2021. After completion of the repair by BMW, there had not been any noticeable problem on the fuel supply system and the Car was serviceable and in good condition. 99.The experts reached a common view on two matters. First, the engine of the Car had not been restarted after the refuel of petrol at the Station. Secondly, on the basis that the engine had not been restarted, the primary fuel pump (ie the high pressure pump) had to be replaced. 100.On the question of extent of damage to the Car, Mr Hui held the view that apart from the fuel tank and the primary fuel pump, in fact the entire fuel pipeline system (ie from the fuel tank to the injector) was damaged due to contamination by petrol in the fuel pipeline. While diesel was colourless, it became light green upon mixing with petrol. As shown by the light green colour in the plastic bag fuel sample taken by BMW at the fuel pipe connected to the injector, mixed fuel had already reached the point of fuel pipe. Although the engine was not restarted, the petrol in the fuel tank could still diffuse with the diesel in the pipeline, hence contaminating the entire fuel pipeline up to the injector. That said, as the engine was not restarted, the injectors and return pipes might not be affected and could be reused. 101.Under cross-examination, Mr Hui testified that on 4 October 2021 Mr Kwan had taken out the primary pressure pump from the Car and until the day of his inspection on 28 November 2021, the same had not been installed back. Other parts such as the fuel pipe, fuel line or accumulator were not removed from the Car. Mr Hui could tell from the coloured sample of fuel extracted from the Car that the diesel fuel had been contaminated, and he was told that the sample had been extracted from the fuel tank. He acknowledged not having stated where the sample had been extracted in his first report dated 2 December 2021, and he could not confirm whether the sample had truly been taken out from the fuel tank. 102.Under cross-examination, Mr Hui further admitted that when the Car was stopped, some fuel would remain in the supply fuel line without going in the injector, and some fuel would remain in the return fuel line without returning to the fuel tank, and also the fuel between the fuel line and the fuel tank would not move either, because the fuel pipes and the fuel lines were sealed. He also admitted that paragraph 11 of the Joint Expert Report, where he stated that the plastic bag sample had been taken at the fuel pipe connected to the injector, had not been stated in his first report. Subsequently he admitted that since the Car had not been started, the sample shown in [E/34], if taken from the fuel line, must be some fuel stored in the fuel line sometime before the stop, and therefore that sample had nothing to do with the Incident. 103.Under cross-examination, Mr Hui further admitted that if the Car had not been restarted, the fuel in the fuel tank could not leave there. He further admitted that diffusion of mixed fuel to other parts of the drivetrain could only happen if the engine had been restarted, and also that his opinion in paragraph 12 of the Joint Expert Report that there could still be diffusion in the pipeline up to the injector was not correct. 104.During re-examination, Mr Hui testified that the sample in [E/34] had been taken from fuel lines above the injectors as shown in [E/50] according to the mechanic of BMW who accompanied him for inspection, and there was no reason to disbelieve the mechanic. 105.On the other hand, Mr Lee testified in-chief that clerical mistakes were made to his first report dated 8 November 2021:-
106.It was Mr Lee’s evidence-in-chief that during his inspection of the Car at the BMW Service Centre on 19 October 2021, he was shown by BMW a plastic bag containing a sample of mixed fuel collected from the fuel tank, together with the primary fuel pump that had been located inside the fuel tank. No other parts of the Car had been dismantled by BMW. At the inspection on 19 October 2021, no fuel overflowing into other fuel delivery parts was observed. The contamination was only caused to the primary fuel pump and no further damage was caused to other parts of the drivetrain including the injectors and accumulator. According to Mr Lee, the wrong refuel of petrol would only cause contamination to the primary fuel pump inside the fuel tank where the engine of the Car had not been restarted. Pure diesel was still filled inside the fuel pipe, accumulator and injectors. Mr Lee also reiterated that the flow of mixed fuel to other parts of the drivetrain would occur only if the engine had been restarted, and there could not be diffusion to other parts of the drivetrain. 107.Under cross-examination, Mr Lee testified that he had realised the mistake about the details of damage in his first report when signing the Statement of Truth for the Joint Expert Report. Upon realising that this action was going to trial, he read the documents again a few months ago and revisited the errors. 108.He further testified under cross-examination that on the day of inspection on 19 October 2021, he saw and was told by a BMW mechanic that the fuel pump being a white cylinder in the fuel tank had been taken out and placed in a plastic bag. There was another small plastic bag filled with fuel. The mechanic told him that the fuel sample was taken from the fuel tank. He also saw blue liquid in the fuel tank. Apart from the fuel tank, Mr Lee also inspected the front part of the Car. Mr Lee denied having found petrol in the injectors when he inspected the Car. He disagreed that the suggestion of replacement of high pressure pump was due to discovery of petrol in the injectors. He denied that the fuel sample had been taken from the injectors. 109.In my judgment, it is clear from the evidence of Mr Kwan, Mr Hui and Mr Lee, after cross-examination, that:-
110.In making the aforesaid findings, this Court has considered also the Defendant’s criticism that the Plaintiff failed to disclose (1) her WhatsApp conversation with Mr Kwan, which the Plaintiff confirmed, under cross-examination, as relating solely to the Incident and being still in her possession, (2) the Repair Order of BMW, and (3) the underlying documents upon which Mr Kwan relied in preparing the BMW Estimates. The Defendant invited this Court to draw adverse inference against the Plaintiff for the deliberate failure to disclose the said documents. 111.The Defendant relies on:-
112.The Plaintiff objected to any adverse inference being drawn, relying on Hongkong and Shanghai Banking Corporation v Chan Yiu-wah & Another [1988] 1 HKLR 457 as applied in Telings (supra). 113.In my view, the WhatsApp conversation between the Plaintiff and Mr Kwan might have covered the extent of contamination or the exact position from which the mixed fuel sample had been collected, Kwan’s advice on costs and extent of repair, comments on Mr Lee’s quotation based on his revisions made to BMW’s quotation dated 6 October 2021 (“Mr Lee’s Revised BMW Quotation”), and the stock of the replacement parts. While the failure to produce the WhatsApp conversation might be deliberate, the Defendant did not challenge the failure in its pleading or witness statements, and did not ask the Plaintiff for explanation under cross-examination. I decline to draw adverse inference against the failure to produce the WhatsApp conversation. 114.As to the Repair Order of BMW and the underlying documents for preparing the BMW Estimates, they might have covered the result of inspection, exact position of extraction of mixed fuel, and suggested items and costs of repair. However, there was no plea or witness statement challenging the non-disclosure, no evidence supporting that the failure to disclose was deliberate, and further no explanation for non-disclosure was canvassed. I decline to draw adverse inference against the failure to produce the Repair Order of BMW or the underlying documents for preparing the BMW Estimates. 115.Suffice it to say that even without drawing adverse inferences, I find that insofar as the Incident is concerned, only the fuel tank and the primary fuel pump (as opposed to the entire fuel pipeline system from the fuel tank to the injectors) were contaminated. (B) Cleaning Fuel Tank and Replacement of Some Parts Only? 116.The next question is whether the fuel tank should have been cleaned, with some other parts of the fuel pipeline system being replaced. 117.As stated, it was the experts’ common opinion that on the basis that the engine had not been restarted, the primary fuel pump (ie the high pressure pump) had to be replaced. 118.The experts produced a copy of the extract of BMW Service Manual. The BMW Service Manual was applicable to the model of the Car, and applied to the situation where the vehicle has been accidentally refuelled with petrol. According to the said manual, petrol does not have any lubricity, and consequently operating the common rail system with petrol will cause considerable damage to the entire fuel system. 119.The BMW Service Manual listed out 4 scenarios and their respective solutions, and the relevant parts are as follows:-
120.The BMW Service Manual also provides that if a repair is carried out which deviates from that measure, then warranty claims ensuing from any subsequent damage will not be acknowledged. The cost of repairing subsequent damage resulting from incorrect refuelling will not be borne by the warranty. 121.In his evidence-in-chief, Mr Kwan testified that since the mixed fuel was found in the fuel tank, fuel pump, fuel pipes and injectors, BMW as the sole distributor did not recommend the cleaning of the contaminated fuel tank, fuel pipes and injectors but recommended all of them to be replaced. Moreover, since the fuel line was not a straight line, it could not ensure that the mixtures at the bends could be washed away. 122.Under cross-examination, Mr Kwan agreed that since the Car had not been started, Case 1 of the BMW Service Manual applied. He accepted that without starting the Car, simple cleaning of the fuel tank was sufficient and there was no need to change any part, though he later testified that it would be necessary to see the circumstances. 123.Mr Hui testified in-chief that cleaning was not a reliable way to remove the mixed fuel and contamination in the fuel pipeline system because there were bends and connecting segments not easily cleaned by flushing. If flushing was not properly done, mixed fuel could be injected into the engine when restarted, thereby causing further damage to the engine and the Car. Moreover, Case 1 in BMW Service Manual was only applicable to the situation where mixed fuel remained in the fuel tank and immediate action was taken to drain the fuel tank after misfuelling. Here, the mixed fuel had already diffused into the fuel pipeline system. As the Car was towed to BMW Service Centre on 2 October 2021 and examined after the weekend on 4 October 2021, it was possible that the mixed fuel had flown into the pipeline contaminating the entire fuel pipeline system. Hence, the contaminated parts in the fuel pipeline system including the fuel tank, pump and accumulator should be replaced by new parts. 124.When cross-examined regarding the BMW Service Manual, Mr Hui agreed that for Case 1, it was feasible to clean the fuel tank if the vehicle had not been restarted. He further acknowledged that Case 1 did not say that the cleaning must be performed immediately after the wrong refuelling. He acknowledged that cleaning the fuel tank was a safe and workable solution. No one from BMW had informed him that harmful substances or magnetic swarfs had been detected in the fuel tank or fuel pipeline. During re-examination, Mr Hui opined that as there could be magnetic swarfs in the fuel tank, he did not agree with cleaning, though frankly admitted that he did not know whether there were such magnetic swarfs in the fuel tank. 125.Mr Lee testified in-chief that only the primary fuel pump and filter had to be replaced because the engine of the Car had not been restarted after the Incident. The rest of the fuel system could be repaired by flushing or cleaning. The fuel pipe connecting the primary fuel pump to the fuel tank was made of steel and therefore flushing/cleaning of the fuel tank and the fuel pipe was sufficient. Minor accessories connecting to the primary fuel pump such as the filter and O-ring might be replaced. Further, according to the BMW Service Manual, the present case fell into Case 1 and draining the fuel tank completely was sufficient. 126.In my judgment, as it is common ground that the Car had not been restarted, the present case clearly fell within Case 1 of the BMW Service Manual, which provides that it is sufficient to drain the fuel tank completely and, if there is no magnetic swarf in the fuel tank, fill the intake side of the fuel tank with 5 litres of diesel. Mr Kwan’s evidence was that there was detailed inspection of the fuel tank, fuel pump and fuel pipe at the BMW Service Centre on 4 October 2021, yet there was no evidence of magnetic swarf being found in the fuel tank. Mr Hui also testified that no one from BMW had informed him that any harmful substance or magnetic swarf had been found in the fuel tank or the fuel system. 127.Moreover, after cross-examination, Mr Kwan, Mr Hui and Mr Lee all agreed, in substance, that without restarting the Car, and in the absence of evidence of any magnetic swarf in the fuel tank, it was feasible, safe and/or reasonable to clean the fuel tank to solve the problem. 128.Since Mr Kwan had no qualification or hands-on experience of car repairing, and given that his recommendation of replacement was based on the contamination of not just the fuel tank but the entire fuel line caused by the Incident, which basis I have already rejected, I prefer the opinion of Mr Lee to the recommendation of replacement of Mr Kwan. In relation to Mr Hui, he acknowledged under cross-examination that Case 1 did not say that the cleaning must be performed immediately after the wrong refuel. Further, Mr Hui’s evidence that the mixed fuel of the present Incident had already diffused into other parts of the fuel system has been rejected by this Court above. Meanwhile, Mr Lee’s evidence is consistent with the proposal for Case 1 in the BMW Service Manual and the common understanding of the parties as revealed after cross-examination that the mixed fuel in the fuel tank would not move to other parts of the fuel system if the Car had not been restarted. I therefore prefer Mr Lee’s opinion to Mr Hui’s opinion. 129.This Court also notices that both Mr Hui and Mr Lee recommended to replace the primary fuel pump even though that was not suggested in the BMW Service Manual. As both Mr Hui and Mr Lee had inspected the Car and recommended the same replacement, I rule that the primary fuel pump had to be replaced. In addition, I notice Mr Lee’s evidence-in-chief to be that “minor accessories connecting to the primary fuel pump may be replaced, such as the filter and O-ring that are in proximity to the primary fuel pump” [emphasis added]. Given the approach of minimal measures for repair and replacement advocated by Mr Lee, and given that the fuel filter and the O-rings were proposed to be replaced in Mr Lee’s Revised BMW Quotation as well (see below), I take it that the filter and O-ring needed be replaced as well. 130.Therefore, I find in favour of the Defendant that only the primary fuel pump, fuel filter and O-ring required replacement, with the remainder of the fuel system capable of being flushed/cleaned. 131.In his written closing submissions, the Defendant submitted that the appropriate remedial measure was that proposed at the first instance on 1 October 2021, ie the Auto Tech approach of draining and flushing the fuel system, and it is only if Auto Tech’s approach being rejected is the assessment of Mr Lee being adopted. Auto Tech’s quotation dated 22 October 2021 included 4 items for labour and 3 items for part replacements, namely fuel delivery module, O-ring and diesel. The total amount quoted was HK$13,610. I reject the Defendant’s argument that Auto Tech’s approach should be adopted. First, as stated in this Court’s analysis in Issue 3 below, Mr Wong Ka Wai or any other staff members of Auto Tech had not inspected the Car before preparing the quotation. Secondly, unlike Mr Hui and Mr Lee having qualifications in motor vehicle engineering and experience in assessing claims relating to motor vehicles as loss adjusters, there is no evidence of any similar qualifications and experience possessed by Mr Wong of Auto Tech. Thirdly, while the method of cleaning the fuel tank should be adopted in the present case, it was the opinion of Mr Lee that the primary fuel pump, the fuel filter and the O-rings needed be replaced as well, but no fuel filter was quoted by Auto Tech to be replaced. (C) Reasonable Labour Costs and Number of Working Days for Repairs 132.The third question is the reasonable labour costs and number of working days required for the repairs. 133.Regarding costs of repair, Mr Hui took the view that labour costs should be HK$26,150.00, costs of replacement parts should be HK$76,570.50 (having applied a depreciation rate of 25%) and thus the total should be HK$102,720.50. Regarding the days required to complete the repair, Mr Hui opined that subject to the availability of replacement parts and given the amount of works required, the number of working days to complete the repair would be 4 to 5 working days. 134.Under cross-examination, Mr Hui maintained that a 25% depreciation should be applied because the Car had been out of factory for 4 years. The same depreciation would be applied even if new components were added. He disagreed that Mr Lee’s Revised BMW Quotation was safe, because the perfect way was to replace the contaminated components and it was necessary to consider whether cleaning was possible having regard to factors such as time, money, effect and risk. 135.Turning to costs of repair, Mr Lee took the view that labour costs should be HK$12,615.00, costs of replacement parts should be HK$20,738.30, and the total should be HK$28,168.70, taking into account a 25% depreciation from the sub-total of HK$33,353,30 based on the age and condition of the Car. This was consistent with Mr Lee’s Revised BMW Quotation. Regarding the days required to complete the repair, Mr Lee took the view that 3 to 4 working days would be required. Based on his inspection on 19 October 2021 and Mr Lee’s Revised BMW Quotation as agreed by Mr Kwan and him on 27 October 2021, there was no indication from BMW that replacement parts were not in stock and that the same had to be ordered. 136.Under cross-examination, Mr Lee testified that on 27 October 2021, Mr Kwan and him had agreed on both the repair method of cleaning as well as the costs. He agreed that the total sum in Mr Lee’s Revised BMW Quotation was subject to change because some items were SD (“subject to dismantle”) and some more work might have to be done after dismantling. Mr Lee further testified that the labour costs could only go up, and if there was no need to replace parts then the labour costs would not go up. The total repair cost was HK$33,353.30 but not HK$28,168.70, as the 25% depreciation would have to be paid by the owner. 137.Under cross-examination, Mr Lee opined that cleaning was sufficient, and the overall labour costs included cleaning, ie Item 5 (removing & installing delivery unit (for checking), HK$936), Item 6 (removing & installing fuel filter neck, HK$1,287), Item 7 (removing and installing fuel tank, HK$2,808) and Item 10 (replacing high pressure pump, HK$4,095) in Mr Lee’s Revised BMW Quotation. Also, the item about the removal of electrical system and attachments for the repair work in his first report had included labour costs. 138.Mr Lee’s opinion on costs of repair (ie Mr Lee’s Revised BMW Quotation) was based on BMW quotation dated 6 October 2021, as revised by him and agreed by Mr Kwan on 27 October 2021. Insofar as parts are concerned, Mr Lee included an O-ring 07147372818 (Item No 22, HK$228.65 each), a fuel filter cartridge (Item No 23, HK$597.55 each), a high pressure pump (Item No 24, HK$19,091.00 each), another O-ring 16119494196 (Item No 38, HK$141.10 each) and a fuel feed line, filter (Item No 39, HK$680.00 each), bringing the total amount to HK$20,738.30. On the other hand, Mr Hui’s opinion on costs of repair was based on BMW quotation dated 30 November 2021. Insofar as parts are concerned, Mr Hui included only an O-ring 07147372818, a fuel filter cartridge and a high pressure pump, but excluded O-ring 16119494196 and fuel feed line, filter. That said, Mr Hui also agreed to place order on 4 injectors (Item No 29, HK$27,917.40 in total), 1 pressure accumulator (Item No 30, HK$6,649.55 each), 1 pressure hose assy 13538514154 (Item No 31, HK$844.05 each), 2 pressure hose assys 13538579244 (Item No 32, HK$1,266.50 in total), 1 plastic fuel tank (Item No 37, HK$12,339.45 each) and 1 plastic filler pipe (Item No 38, HK$1,402.50 each). 139.Since the evidence of both Mr Hui and Mr Lee was that the primary fuel pump had to be replaced, while there was only one pump (namely the high pressure pump) in both assessments of Mr Hui and Mr Lee, I find it as a fact that the high pressure pump was the primary fuel pump referred by the parties, and since Mr Hui also took the view that the high pressure pump should be ordered for replacement, I reject the Plaintiff’s argument that Mr Lee should have chosen the “Delivery Module” in [C2/193]. Moreover, there was also no challenge by the Plaintiff regarding the necessity of ordering an O-ring 16119494196 (Item No 38, HK$141.10 each) and a fuel feed line, filter (Item No 39, HK$680.00 each) for replacement. 140.In relation to labour costs, Mr Lee included towage of Car (Item No 2, HK$900), 4 units of performing vehicle test (Item No 3, HK$468 in total), 7 units of extracting fuel from fuel tank and filling (Item No 4, HK$819 in total), 8 units of removal and installation of delivery unit for checking (Item No 5, HK$936 in total), 11 units of removal and installation of fuel filter neck (Item No 6, HK$1,287 in total), 24 items of removal and installation of fuel tank (Item No 7, HK$2,808 in total), 6 items of renewal of fuel filter (Item No 9, HK$702 in total), 35 units of replacement of high pressure pump (Item No 10, HK$4,095 in total) and 6 units of diesel (Item No 21, HK$600 in total), totalling HK$12,615.00. On the other hand, Mr Hui included all the items of Mr Lee, and in addition replacements of pressure lines, fuel injectors and high pressure rail. 141.Having considered both the assessments of Mr Lee and Mr Hui, I prefer the assessment of Mr Lee. Insofar as the parts are concerned, Mr Lee’s quotation is consistent with my ruling above that only the primary fuel pump, fuel filter and O-rings required replacement. I am also satisfied that those parts marked “SD” (subject to dismantle) were not related to the primary fuel pump, fuel filter or O-rings and so no extra work and charges should arise even after dismantling. The Plaintiff did not criticise Mr Lee for the extent of reduction of the costs of the parts. In any event, I find the reduced amounts reasonable, and I allow the same. Turning to the labour costs, Item Nos. 11 to 15 included by Mr Hui were not related to the replacement of the primary fuel pump, fuel filter and O-rings, and therefore Mr Lee was justified in excluding the same. The Plaintiff did not criticise Mr Lee for the extent of reduction of the labour costs. I also find the reduced amounts of the labour costs reasonable. I allow the same. 142.In relation to the number of working days required to carry out the repairs, since I allow exactly the method of repair of the Defendant and Mr Lee’s Revised BMW Quotation (ie cleaning of fuel tank with replacement of primary fuel pump, fuel filter and O-rings only) and the quantities of labour costs and part replacements, I prefer the evidence of Mr Lee on the number of working days required. In my judgment, 4 working days are required. (D) Depreciation? 143.The last question in this issue is whether a depreciation rate should be applied to any replacement parts, and if so, at what rate. 144.The Plaintiff submitted that the issue of depreciation/betterment is a matter of law, and not a matter of opinions of loss adjusters. The doctrine of “betterment”, submitted the Plaintiff, is well-established, particularly in the repairs of motor vehicles after an accident when repairs are inevitable. The issue stems from the notion that a repaired car would be better than before the accident. But in law, the cost of a complete repair of all the damage is recoverable notwithstanding the result of a complete repair may be to render the car better. The Plaintiff relied on, in the context of motor vehicles in Hong Kong:-
145.The Defendant submitted that it is trite that no deductions on betterment should be allowed for inevitable replacement in order to repair/restore the Car. However, the BMW Service Manual is unequivocal that no parts require replacement following an incident of this nature. The appropriate remedy was simply to flush the Car’s fuel system. Any works beyond flushing would therefore exceed what is necessary to restore the Car to its pre-incident condition. Such additional works do not constitute “inevitable betterment or improvement” as identified in Harbour Front Investments Ltd (supra). 146.In other words, the Defendant did not take issue with the legal position advanced by the Plaintiff, but he disputed that any works beyond flushing are not inevitable betterment or improvement and so depreciation should apply. 147.As ruled above, the primary fuel pump, fuel filter and O-rings were required to be replaced. In my judgment, those parts constitute inevitable betterment or improvement and therefore depreciation does not apply. 148.In conclusion, for Issue 2, the reasonable costs of repairs to the Car is HK$33,353.30 (HK$20,738.30 for replacement parts and HK$12,615.00 for labour costs). IX. ISSUE 3 – ANY MITIGATION OF LOSS BY THE PLAINTIFF? 149.A plaintiff must take all reasonable steps to mitigate his loss consequent upon the defendant’s wrong and cannot recover damages for any such loss which he failed, through unreasonable action or inaction, to avoid. Put shortly, the plaintiff cannot recover for reasonably avoidable loss. See McGregor on Damages (22nd ed, 2024), at paragraph 10-004. 150.A plaintiff is not under any contractual duty to mitigate his loss or adopt the cheapest method: if he wishes to adopt the more expensive method, he is at liberty to do so and by doing so he commits no wrong against the defendant or anyone else. Nonetheless, the claimant is not entitled to charge the defendant by way of damages with any greater sum than that which he reasonably needs to expend for the purpose of making good the loss. See McGregor on Damages (supra), at paragraph 10-018. 151.In the context of motor vehicle accident, Bharwaney DDJ (as he then was) held in Kowloon Motor Bus Co (1933) Ltd v Yick Kwok Keung & Anor [1991] 2 HKC 632, at 640I, that there is no doubt that there is, in law, a duty on the plaintiff to mitigate its loss by repairing the damaged vehicle as soon as reasonably possible. There is a ‘duty’ in the sense that the defendants are not liable for such loss of use which the plaintiff could reasonably have avoided by commencing repairs on the vehicle earlier than it in fact did. See also The Kowloon Motor Bus Co (1933) Ltd v K K Cargo Systems (HK) Ltd and Another DCCJ 7794/2001, 2 August 2002, per Joseph Yau DDJ (as he then was), at page 9. 152.The Defendant submitted that he offered to have Auto Tech repair the Car within 1 to 2 working days at the Defendant’s expense. This offer was initially accepted by the Plaintiff but subsequently rejected. The Plaintiff ’s choice of a more extensive and delayed repair was unreasonable when a quicker, adequate repair was available, and that the additional loss incurred as a result should not be recoverable. The Defendant further contended that notwithstanding the relatively straightforward nature of the repair required, the Car was sitting idle at BMW Service Centre from 1 October 2021 until 4 December 2021 when the Plaintiff paid BMW HK$40,000 for the maintenance, ie a period of 65 days. 153.In examination-in-chief, the Plaintiff testified that upon the Incident, Mr Leung immediately contacted the Plaintiff and proposed to tow the Car to a car repair garage for cleaning the fuel tank. Since the Plaintiff had no knowledge of car repair, she took the view that a professional should be engaged for inspection of the damage of the Car and provision of repair proposal, and so she did not accept Mr Leung’s proposal. Instead, she caused the towage of the Car herself to BMW Service Centre on 1 October 2021, at around 2:30 pm. Mr Kwan contacted the Plaintiff and informed that it was discovered upon inspection that parts like the fuel tank, fuel line and fuel pipes were contaminated with a mixed solution of petrol and diesel, and some parts needed be repaired or replaced. 154.The Plaintiff further testified in-chief that on 6 October 2021, she received a quotation for repair of HK$119,615.20 from BMW Service Centre, and forwarded the same to Mr Leung. Nevertheless, the Defendant took the view that the quotation was too expensive, and requested to arrange his own loss adjuster, Toplis, to inspect the Car at BMW Service Centre. On about 25 October 2021, the Plaintiff received an inspection report from Mr Sammy Lee (ie Mr Lee) of the Defendant’s loss adjuster, denying any permission given by the Defendant to the Plaintiff for replacement of fuel tank and fuel line, and claiming that the Car could be repaired simply by cleaning. Subsequently, the Plaintiff also discussed the repair proposal with Mr Leung, but upon the Plaintiff’s enquiry whether the cleaning method could guarantee that the Car would have no problem, Mr Leung could not provide an undertaking in such regard. Therefore, the Plaintiff could not accept the cleaning method. 155.The Plaintiff further testified in-chief that since she and the Defendant could not reach any agreement over the repair proposal and costs, the Plaintiff, in about mid-November 2021, incurred HK$1,000 to arrange her loss adjuster Anderson to conduct further inspection of the Car at BMW Service Centre with a view to reducing the repair costs. On about 2 December 2021, the Plaintiff received the inspection report from Mr Hui of her loss adjuster, which, apart from deletion of a few secondary items, agreed with the repair proposal of replacing contaminated components including the fuel tank, oil pump, fuel pipe, etc. Upon receiving the professional views of BMW Service Centre and her loss adjuster, the Plaintiff decided to accept the proposal of BMW Service Centre for replacing parts, and paid BMW Service Centre HK$40,000 as deposit for ordering components. Subsequently, upon the completion of repair, the Plaintiff on 15 January 2022 paid the repair cost balance of HK$102,720.55 to BMW Service Centre and retrieve the Car. 156.Under cross-examination, the Plaintiff agreed that the time for repair at the garage suggested by the Defendant (ie Auto Tech) would be shorter than that at BMW Service Centre. She testified that she eventually decided to tow the Car to the BMW Service Centre because BMW as the manufacturer was authoritative. She did not know if cleaning the fuel tank was a feasible solution, but she hoped the Car to be intact and in any event she thought the Station would be responsible for the costs of repair by BMW. The Plaintiff then changed her testimony and agreed that the Station’s suggestion of cleaning the fuel tank was reasonable and feasible. Mr Kwan of BMW did not agree with cleaning the fuel tank, and the Plaintiff testified that she regarded BMW’s opinion was the most authoritative and so she preferred BMW’s opinion to that of Mr Leung. 157.Regarding the quotation for repair of HK$119,615.20, when put to her under cross-examination that there was nothing said about any part being out of stock, the Plaintiff testified that she did not know the English terms and she understood those parts about labour and parts only. From 4 to 29 October 2021, the Plaintiff did not ask Mr Kwan how long it would take BMW to repair the Car, but she testified that she knew parts had to be ordered and this required more time, but when she asked which parts had to be ordered, Mr Kwan could not answer. When asked why she did not put this down in her witness statement, she said she had told the other side and since this was not a wet market, she did not have to say. 158.The Plaintiff clarified that she had received a revised quotation (ie Mr Lee’s Revised BMW Quotation) instead of inspection report from Mr Lee, and the date of receipt was wrong. In relation to the WhatsApp message from Mr Leung at 6:47 pm and her WhatsApp message at 6:56 pm on 29 October 2021, the Plaintiff testified that despite BMW’s disagreement, she could accept Mr Lee’s suggestion of repair and check at the cost of HK$28,000 odd, subject to the Station’s payment of costs and drafting of settlement agreement and BMW’s warranty to repair. It was on such basis that the Plaintiff provided a draft settlement agreement incorporating Mr Lee’s suggestion (which was also the Station’s offer) to Mr Leung by WhatsApp [at C1/22-24], but the same was not signed and fell through eventually. Later on in cross-examination, the Plaintiff also accepted that no delay would be caused to the repair if she had followed the Station’s proposal. 159.During re-examination, the Plaintiff testified that she had to ask other professionals about the feasibility of cleaning the fuel tank because she did not know how the problem should be solved. She also testified that it was stated in the Second Note that the Car would be towed to BMW Service Centre because she had already asked professionals and understood that cleaning the fuel tank would not be feasible. 160.Mr Kwan testified in-chief that on about 6 October 2021, Mr Kwan passed the BMW quotation to the Plaintiff. Further, Mr Kwan testified that if a client decided to opt for cleaning as the sole method of repair, BMW would not provide warranty that the repair workmanship and parts were in good condition. Therefore, BMW recommended to replace the contaminated parts. Mr Kwan further testified in-chief that he had also informed the Plaintiff that some parts were out of stock and it would take time to order. Upon the Plaintiff’s confirmation of repair by BMW and her payment of deposit on 4 December 2021, Mr Kwan placed orders on the required parts on 6 December 2021:-
161.Upon the arrival of all parts, the repair to the Car commenced. On 5 January 2022, the repair was completed. 162.Under cross-examination, Mr Kwan testified that BMW would issue repair warranty for parts which were replaced, but would not issue repair warranty if just the fuel tank was cleaned without any replacement of parts. Mr Kwan also accepted that the repair including replacement of parts and testing at BMW Service Centre would not require more than 5 days. Mr Kwan further admitted that BMW had not taken stock of the parts required for the repair of the Car before 30 November 2021. Neither had he told Mr Lee or Mr Hui that some parts were out of stock and orders had to be placed. Mr Kwan admitted that BMW’s stance was that replacement of all parts would be the safest, but also frankly admitted that the deletion of certain parts for replacement by Mr Lee would not render the Car unsafe. 163.Mr Leung testified in-chief that on 11 October 2021, the Plaintiff sent him a pdf file which showed that the total repair cost quoted by BMW on 6 October 2021 was HK$119,615.20. The Defendant and he took the view that not all repair items were caused by the Incident, and therefore the Defendant arranged Toplis to inspect the Car and prepare an inspection report. On 19 October 2021, Mr Lee visited the BMW Service Centre to inspect the Car. On 26 October 2021, the Plaintiff sent Mr Leung two pdf files with the same contents, being Mr Lee’s Revised BMW Quotation. Between 27 October 2021 and 2 November 2021, Mr Leung had liaised with the Plaintiff. With a view to resolving the matter, the Defendant side had tried to accommodate the Plaintiff even though her requests such as period of warranty were unreasonable. The Defendant also prepared the draft agreement for car accident, but since on 2 November 2021 the Plaintiff revised the said draft by reserving the right to claim and further made it clear that the said draft would not be a settlement agreement, and given the Plaintiff’s change of position for many times, Mr Leung stopped liaising with the Plaintiff on 2 November 2021 and left the matter to be handled by the Defendant. 164.Under cross-examination, Mr Leung testified that as shown by his WhatsApp message at 2:28pm on 1 October 2021, he had not known that the mixed fuel had leaked into the fuel line, and so he asked the Plaintiff if she had started the Car, otherwise the mixed fuel would not have reached the fuel pipe. Regarding the WhatsApp message at 7:07:20 am on 28 October 2021, Mr Leung testified that the difference between the Plaintiff and the Defendant side was that the Plaintiff wanted to have the 6-month repair warranty from BMW, and that it was his understanding that BMW would provide a 6-month warranty, a matter to be confirmed by Mr Lee with BMW. 165.The Defendant testified in-chief that he had sought the opinion of Auto Tech which took the view that Mr Lee’s repair proposal could provide sufficient protection to the Plaintiff, and that since the engine of the Car had not been started and therefore it was sufficient to clean the fuel tank and replace a few components which were close to the fuel tank and easily worn out. Auto Tech also prepared its repair proposal for the Defendant’s comparison. On 2 November 2021, the Plaintiff revised the said draft by reserving the right to claim and further made it clear that the said draft would not be a settlement agreement, and given the Plaintiff’s change of position for many times, the Defendant asked Mr Leung to stop liaising with the Plaintiff on 2 November 2021 and, instead, paid the amount of HK$28,168.70 (being Mr Lee’s Revised BMW Quotation) directly to the Plaintiff as repair costs. 166.Under cross-examination, the Defendant testified that the quotation of Mr Wong of Auto Tech was based on Mr Lee’s Revised BMW Quotation sent by the Plaintiff on 26 October 2021, so he admitted that he might have made a mistake when testifying that Mr Wong’s quotation was dated 22 October 2021. Remark No 1 in Mr Wong’s quotation was based on what the Defendant had told him, and in relation to Remark No 2, the Defendant focused on the price while knowing roughly what would be done, but he did not check all the remarks or acquaint himself with the DAS Test. 167.In my view, the question whether the Plaintiff acted reasonably in deciding to repair the Car at the BMW Service Centre on 4 December 2021 and, if the answer is ‘no’, the question what should be the reasonable repairs and when the same should reasonably have been carried out must be answered according to the prevailing circumstances at the time when the Plaintiff could and should have made the decision, but must not be judged with hindsight. The undisputed or indisputable evidence was that the Plaintiff had no knowledge of car repair, and that the wrong refuel of petrol into the diesel Car was a serious matter. At the early hours of the day, faced with Mr Leung’s proposal of cleaning the fuel tank of the Car at a garage arranged by the Station, the Plaintiff felt the need to discuss with Uncle Keung, the mechanic with 5 to 6 years’ experience of car repair who worked at a familiar garage of the Plaintiff. I find it reasonable that the Plaintiff hoped the Car to be intact after the repair, and with no knowledge of car repair it was nothing unreasonable that the Plaintiff would want the Car be inspected by professionals such as mechanics of BMW, being the original equipment manufacturer of the Car, which she considered authoritative. This is so even though it was the Plaintiff’s evidence under cross-examination that repair at Auto Tech would be quicker and at the Defendant’s expense, and that the Station’s suggestion of cleaning the fuel tank was reasonable and feasible despite Mr Kwan’s disagreement. As I held above, there was no evidence on Auto Tech or Mr Wong Ka Wai’s qualification or experience in motor vehicle engineering. I find nothing unreasonable for the Plaintiff to sign the First Note with the express qualification that Compensation No 2 would only be proceeded with upon agreement by professionals and consent by the Plaintiff. It was also nothing unreasonable for the Plaintiff, after signing the First Note, to contact other garages which advised against cleaning the fuel tank, and eventually sign the Second Note confirming inspection by the BMW Service Centre. 168.Mr Lee inspected the Car at BMW Service Centre on 19 October 2021. As held above, the opinion discerned in Mr Lee’s Revised BMW Quotation was that only cleaning the fuel tank and replacing the primary fuel pump, fuel filter and O-rings were required. The Plaintiff’s evidence, as corrected under cross-examination, was that she received Mr Lee’s Revised BMW Quotation on 26 October 2021. Mr Kwan’s evidence was that on 22 October 2021, Mr Kwan received the inspection report from Toplis (which ought to be Mr Lee’s Revised BMW Quotation) and, on 25 October 2021, forwarded the same to the Plaintiff. Reading the said evidence of the Plaintiff and Mr Kwan together, I find it as a fact that Mr Kwan had received Mr Lee’s Revised BMW Quotation from Mr Lee on 22 October 2021, and forwarded the same to the Plaintiff on 25 October 2021. Then, according to her WhatsApp messages with Mr Leung, the Plaintiff forwarded Mr Lee’s Revised BMW Quotation to Mr Leung on 26 October 2021. 169.As held above, Mr Lee’s Revised BMW Quotation shows the reasonable scope of works for repair and the reasonable costs of repair. It was also Mr Lee’s evidence, in his first report dated 8 November 2021, that upon completion of his inspection, the total repair cost had been agreed with Mr Kwan on 27 October 2021. Under cross-examination, Mr Lee testified that on 27 October 2021, Mr Kwan and him had agreed on both the repair method of cleaning as well as the price. Moreover, despite BMW Service Manual provides that if a repair is carried out which deviates from that measure then warranty claims ensuing from any subsequent damage will not be acknowledged, Mr Kwan’s evidence under cross-examination was that BMW would issue repair warranty for parts which were replaced. 170.In her WhatsApp message dated 27 October 2021, the Plaintiff informed Mr Leung that BMW had expressly stated that they would not grant any warranty for the repair proposal in Mr Lee’s revised BMW quotation, and so she did not accept Mr Lee’s Revised BMW Quotation. The Plaintiff further stated that she was willing to try the method proposed by Mr Lee but the Defendant had to provide a written undertaking to compensate her for all losses including repairs and replacements of parts arising from this method. The Plaintiff requested Mr Leung to reply by 9 am on 28 October 2021. The Plaintiff further attached Mr Lee’s Revised BMW Quotation. 171.In his WhatsApp message dated 28 October 2021 at 7:07 am, Mr Leung informed the Plaintiff that it was his understanding that should the repair proceed successfully on the basis of Mr Lee’s Revised BMW Quotation, BMW would provide a 6-month warranty, subject to confirmation by BMW. This was followed by the Plaintiff’s WhatsApp dated 28 October 2021 at around 7:20 am, that the Plaintiff would accept Mr Lee’s Revised BMW Quotation if the Defendant could convince BMW to give the 6-month warranty which, according to her understanding, would not be the case. 172.By his WhatsApp message dated 28 October 2021 at 1:23 pm, Mr Leung proposed to the Plaintiff to hold a tripartite meeting among Toplis, the Plaintiff and the Defendant to discuss and resolve the repair issue. Mr Leung testified under cross-examination that this meeting did not materialise. 173.Then, in her WhatsApp message dated 29 October 2021 at 12:12 pm to Mr Leung, the Plaintiff referred to their telephone conversation just a moment before and stated that should the Defendant be responsible for all costs of repair at BMW Service Centre until BMW’s confirmation of repair and grant of warranty inclusive of depreciation fee, then she would accept the proposal. 174.By WhatsApp message dated 29 October 2021 at 5:34 pm, Mr Leung thanked the Plaintiff for her acceptance of Mr Lee’s Revised BMW Quotation, stated that the revised proposal had been agreed by Toplis and BMW and, upon repair and testing, BMW would provide warranty, and further that he would request Toplis to draft an agreement for signing. Mr Leung also promised to pay BMW immediately after signing the agreement. 175.By WhatsApp message dated 29 October 2021 at 6:08 pm, the Plaintiff reiterated to Mr Leung that any further costs of repair after this repair would have to be borne by the Defendant, and that BMW had to grant the warranty, otherwise she would not sign the agreement. She further stated that the Defendant must agree with the terms by 10 pm that night, otherwise she would find a lawyer. 176.By WhatsApp dated 29 October 2021 at 6:47 pm, Mr Leung acknowledged once again the Plaintiff’s acceptance of the revised proposal, and further reiterated that the revised proposal had been agreed by BMW and Toplis. Mr Leung promised to be responsible for all costs until the Car could pass the tests and function normally again, and subsequently BMW would provide its warranty. Mr Leung insisted on the signing of the draft agreement, and promised to pay BMW for the costs as soon as the agreement was signed. 177.By WhatsApp dated 29 October 2021 at 6:56 pm, the Plaintiff told Mr Leung “possible,, accept” (可以，，接受). 178.What followed was uncontroversial. Mr Leung sent the Plaintiff the draft agreement for car accident prepared by the Defendant side, but the Plaintiff did not sign but sent back a revised draft in which she reserved the right to claim and further made it clear that the said draft would not be a settlement agreement. No agreement was ever signed by the parties and Mr Lee’s Revised BMW Quotation was never adopted by the Plaintiff. 179.In my judgment, it was clear from the WhatsApp messages between the Plaintiff and Mr Leung that the Plaintiff was willing to adopt Mr Lee’s Revised BMW Quotation, namely to clean the fuel tank and replace the primary fuel pump, fuel filter and O-rings only, subject to the Defendant’s confirmation (1) to be responsible for all losses arising from the failure of the revised repair proposal, and (2) that BMW shall grant the repair warranty. By the Plaintiff’s WhatsApp message dated 29 October 2021 at 6:56 pm, consensus was apparently reached between the Plaintiff and Mr Leung (for the Defendant). Such an agreement was a reasonable one for the parties to enter into:-
180.In the circumstances, this Court finds that the Defendant should have accepted the revised repair proposal in Mr Lee’s Revised BMW Quotation as endorsed by the Defendant on 29 October 2021. In other words, costs relating to the repair after 29 October 2021 including the Plaintiff’s engagement of Anderson for inspection and quotation and BMW’s repair costs of HK$102,720.55 were not costs reasonably incurred, and the same shall not be responsible by the Defendant. 181.This Court is aware that the Defendant pleaded that the Plaintiff fails to act reasonably to mitigate loss and damage by unreasonably refusing to allow Auto Tech to repair on 1 October 2021, or alternatively by unreasonably withholding to carry out repair by BMW Service Centre soon after the inspection by Toplis on 19 October 2021. However, while the issue of mitigation of loss has to be pleaded, the Court is not bound by the specific dates pleaded by the parties but has to consider all evidence to determine when reasonable steps should have been taken to avoid irrecoverable losses. In any event, the aforesaid evidence enabling this Court to reach the conclusion was all along there and the Plaintiff was not surprised or prejudiced. 182.In reaching this conclusion, this Court has considered the Defendant’s criticism that the Plaintiff failed to disclose (1) her WhatsApp conversation with Mr Kwan, (2) the Repair Order of BMW and (3) the underlying documents upon which Mr Kwan relied in preparing the BMW Estimates. Such documents might be relevant to the Plaintiff’s duty to mitigate her loss. In particular, the WhatsApp conversation might have contained Mr Kwan’s advice that some replacement parts were out of stock. However, it was confirmed by Mr Lee’s evidence that the items and costs of repair in Mr Lee’s Revised BMW Quotation were confirmed by Mr Lee and Mr Kwan on 27 October 2021, as well as Mr Kwan’s evidence under cross-examination that BMW would provide warranty to the replaced parts of the Car and that BMW had not taken stock of the components required for the repair of the Car before 30 November 2021. The absence of the said WhatsApp conversation does not affect my conclusion that the Plaintiff should have accepted Mr Lee’s Revised BMW Quotation on 29 October 2021. Similarly, given the said agreement between Mr Lee and Mr Kwan on 27 October 2021, the absence of the Repair Order of BMW and the underlying documents for preparing the BMW Estimates does not affect my conclusion. 183.This Court has also considered the Defendant’s criticism of the Plaintiff’s evidence under cross-examination that she had informed the Defendant side about BMW’s need to place orders on some replacement parts, while such evidence was not stated in the Plaintiff’s witness statement. Since I have reached the conclusion that the Plaintiff should have accepted Mr Lee’s Revised BMW Quotation on 29 October 2021, while there is no evidence that any replacement part in the said quotation was out of stock and required ordering, I do not have to express any view on this part of the Plaintiff’s evidence. 184.As held above, the repair works should require 4 working days. It is indisputable that 29 October 2021 was Friday, so the repair works should finish on 4 November 2021. To reach this conclusion, this Court has taken into account the absence of any evidence suggesting that any of the primary fuel pump, fuel filter and the O-rings was out of stock on 29 October 2021. 185.I therefore answer Issue 3 as follows:-
X. ISSUE 4 – RECOVERABLE DAMAGES 186.I have ruled that the Plaintiff should have accepted Mr Lee’s Revised BMW Quotation, and the reasonable costs of repair for this proposal is HK$33,353.30, which I allow. This Court rejects the Plaintiff’s claim for BMW’s repair costs of HK$102,720.55. 187.Moreover, by reason of my ruling that costs incurred by the Plaintiff beyond 4 November 2021 was unreasonable, I reject the Plaintiff’s claim for Anderson’s survey fee in the sum of HK$1,000. 188.I turn next to the claim for vehicle rental costs, taxi fares and costs of additional petrol. 189.The Plaintiff testified in-chief that she had acquired the Car at a second-hand purchase in 2019. Since acquisition, the Plaintiff had been driving the Car which had good performance with no mechanical problem. As a professional pet groomer, the Plaintiff had to use the Car to deliver the pets of her clients back and forth their homes and her pet shop on Aberdeen Main Street, or drive the Car to her clients’ homes for pet grooming or delivery of food for pet dogs and cats. By reason of the Incident, and by reason of the time required for repair, the Plaintiff had to take taxi to go back and forth her clients’ homes and her pet shop, and as a result incurred taxi fares of HK$6,034.70. Nonetheless, as neither taxi nor other public transport was convenient for carrying pets and pet food, the Plaintiff rented a Toyota Prius 5-seater private car, which was similar in size as the Car, from a car rental company called On Big Limited for HK$5,300 per week inclusive of insurance. The rental of the said Toyota Prius commenced on 9 October 2021 and ended on 15 January 2022 when the Car finished repair. The Plaintiff spent a total sum of HK$68,900.00. Meanwhile, the Plaintiff incurred additional petrol fee of about HK$23,300.00. 190.Under cross-examination, the Plaintiff testified that she was one of the proprietors of her pet grooming shop called Dog Pro Pet Grooming at the time of the Incident, and she had 3 certificates of qualification as a professional pet groomer, but admitted that she did not adduce evidence such as the business name, the company name and her certificates. She admitted that driving a car was more convenient than hiring taxi for her pet grooming business, as she had to carry pets back and forth her shop and clients’ homes with tools such as cages for cats, as well as deliver pet food. Turning to the question of quantum, the Plaintiff agreed that based on Mr Hui’s evidence that the repair could be finished within 5 working days, it was not necessary to take so many days of taxi the fares of which amounted to HK$6,034.7. In relation to car rental, when put to her that all 4 car rental agreements adduced were not signed, the Plaintiff testified that the other contracting party had given the same to her and so she had not signed, and apart from invoices she did not remember if there was any evidence showing her payment of car rental. The Plaintiff further testified that the rented car was a special vehicle which allowed carrying of pets and that cleaning pets’ waste was covered by cleaning costs, but when questioned that the cleaning fee of HK$1,800 did not state the inclusion of cleaning pets’ waste, the Plaintiff admitted the same. In relation to the claim for additional fuel cost, the Plaintiff admitted that she realised HK$23,300 was claimed in the Statement of Claim, while her written Opening Submissions sought the price difference between petrol and diesel (which was about 10% more expensive than diesel at the material time) which was not pleaded. Receipts totalling HK$3,606.90 only were disclosed because by the time of preparing the witness statement, some of the receipts had already faded. 191.In re-examination, the Plaintiff testified that the cleaning fee for car rental would include cleaning all dirty things including pets’ waste and hair. 192.The Defendant testified in-chief that the Plaintiff did not disclose her proof of payment for the HK$40,000 deposit and the customer invoice of HK$102,720.55 in respect of the car repair by BMW. He also testified that since the problem could be solved within 4 to 5 days, the Plaintiff would require taking public transport or taxi for a few days only, let alone renting a car. For car-renting with On Big Limited, the Plaintiff did not disclose any proof of payment for the 13 invoices. For car rental, the Defendant took the view that the reasonable basis was a private car for taking passengers, and such a car would not require additional cleaning fees. Also, a 5-seater 2,000 cc private car with a petrol engine could be rented for HK$2,480 for 7 days or HK$4,980 for 30 days in the market, so the Plaintiff’s cost of HK$3,500 per 7 days was unreasonable. The Defendant further disagreed with the fuel fee which should be incurred in any event even without the Incident, and also the Plaintiff could rent a car with lower total volume of all cylinders of the engine so that the fuel fees could be lower. For taxi fares, the Defendant testified that it should be calculated based on the distance between her home and the closest MTR station, and the total distance for such return trips should be 60 km. The reasonable amount should be less than HK$2,000. The Defendant also took issue with the taxi receipts which did not show details of the payer. 193.Under cross-examination, the Defendant testified that it would be more reasonable to rent a car for HK$2,460. When cross-examined that it was reasonable for the Plaintiff to rent a car with total volume of all cylinders of the engine similar to the Car (1995 cc), the Defendant testified that the Plaintiff needed not a car with similar total volume of all cylinders for transportation. In re-examination, the Defendant clarified that the car he referred to in paragraph 27 of his witness statement was not the prius in Column C of [C2/249] but should be the one in Column A instead. 194.This Court has taken note that the Defendant challenged the Plaintiff’s oral evidence of running a pet grooming business which necessitated the use of the Car to carry pets back and forth the clients’ homes and her pet grooming shop, when the Plaintiff frankly admitted under cross-examination that she had not adduced documentary evidence showing her qualifications as a pet groomer and her pet grooming business with the business name and the company name. This Court has also paid heed to the Defendant’s challenge that the Plaintiff had not adduced any payment records such as receipts (as opposed to unsigned car rental agreements and unsigned invoices) proving her rental of a vehicle during the repair of the Car. This Court has carefully considered the Plaintiff’s oral evidence (including her demeanour) in light of all other evidence including the documentary evidence, as well as inherent probabilities and improbabilities. In fact, receipts of HK$5,300 each issued by On Big Limited for car rental periods of 9 to 15 October 2021, 16 to 22 October 2021, 23 to 29 October 2021 and 30 October 2021 to 5 November 2021 can be found at [C1/115-118]. This Court also takes note of the Plaintiff’s WhatsApp conversation with Mr Leung around 5:56 pm on 11 October 2021, in which the Plaintiff said that she knew nothing about car repair, while she had to rent a vehicle as soon as possible so that she could carry the dogs every day, and even such vehicle rental was difficult since no one allowed the vehicle being used to carry dogs especially with such urgency. The Plaintiff’s said messages were not challenged by Mr Leung at that time or by the Defendant at trial. Moreover, in the letter dated 16 November 2021 from the Plaintiff’s solicitors to the Station, it was stated in paragraph 8 that the Plaintiff relied on the Car to travel to different customers to work every day, and since the Car was out of service her daily work had been greatly affected. That statement was not traversed by the Defendant’s solicitors’ letter dated 18 November 2021. Such WhatsApp messages and the said letter from the Plaintiff’s solicitors lent support to the Plaintiff’s case of pet grooming business. 195.This Court therefore finds, as facts, that:-
196.In the premises, based on the earlier finding that the Plaintiff should have accepted Mr Lee’s revised repair proposal on 29 October 2021, this Court, first, allows the taxi fares incurred by the Plaintiff from 1 October 2021 to 9 October 2021, which are supported by taxi receipts, in the total sum of HK$6,012.40:-
197.Next, in respect of car rental fares, since I have ruled that fees and costs incurred by the Plaintiff beyond 4 November 2021 were unreasonable, I only accept car rental from 9 October 2021 to 4 November 2021. The Plaintiff rented a Toyota Prius private car with 1,797 cc, which was manufactured in 2012 and driven by petrol, for HK$3,500 inclusive of insurance (plus HK$1,800 cleaning fee) for 7 days. The first registration date of the Car was 2017. While the Defendant suggested the Plaintiff could have rented a similar car from one Goodway Pass Car Rental for HK$2,480 for 7 days or HK$4,980 for 30 days, the price list specifically stated that a daily cover of $100 was payable, and that means such a car would be rented for HK$3,180 for 7 days or HK$7,980 for 30 days. As acknowledged by the Defendant that the Plaintiff was not bound to take the cheapest possible option, I do not find the Plaintiff’s choice of renting the car from On Big Limited at HK$3,500 inclusive of insurance unreasonable. In addition, while the car rental agreements of On Big Limited did not specifically say that the cleaning fee of HK$1,800 included the cleaning of pets’ waste, given the relatively large amount of the cleaning fee, and given that there is no evidence of cleaning fee chargeable by car rental companies in normal vehicles taking passengers (see for example the price list of Goodway Pass Car Rental), I hold that the cleaning fee of HK$1,800 included the cleaning of pets’ waste. 198.In summary, I allow the car rental fare of HK$5,300 per 7 days from 9 October 2021 to 4 November 2021, ie a total of 27 days. Therefore the total amount allowed under this head is HK$20,442.86. 199.Finally, in relation to the claim for additional petrol, I accept the Defendant’s argument that it is unreasonable for the Plaintiff to claim the full amount of HK$23,300 as the Plaintiff would have to buy diesel to refuel the Car anyway if the Incident had not happened. In her written Opening Submissions, the Plaintiff, instead, sought the price difference between petrol and diesel (which was said to be about 10% more expensive than diesel at the material time), and given that there were only receipts supporting a total amount of HK$3,606.90, the Plaintiff limited her claim to HK$360. Nonetheless, not only was that such 10% difference was not pleaded, but also that there is no evidence showing that the price difference between petrol and diesel was 10%. In the absence of evidence, I refuse the Plaintiff’s claim for additional petrol. In this connection, this Court accepts that it is inherently probable that some of the receipts had already faded when the Plaintiff prepared her witness statement, and further the Plaintiff’s failure to adduce the other receipts might be due to imprudence in preserving the receipts as evidence by, for example, making photocopies of the same, but not necessarily because of incredibility. 200.In any event, in her written closing submissions, the Plaintiff acknowledges the absence of evidence regarding the price difference between diesel and petrol, and expressly concedes this point and makes no claim under this head. 201.To conclude on Issue 4, the damages allowed in favour of the Plaintiff is as follows:-
XI. ISSUE 5 – DEFENCE OF TENDER? 202.The Defendant’s evidence-in-chief was that upon consideration of Mr Lee’s report dated 8 November 2021, he instructed his solicitors to send the Plaintiff a letter by registered post on 18 November 2021 with a cheque in the sum of HK$31,128.70, but the Plaintiff did not collect the letter at the post office. Therefore, on 9 December 2021 the Defendant instructed his solicitors to send another letter to the Plaintiff’s solicitors, reiterating his settlement plan and enclosing a cheque in the amount of HK$31,128.70. Correspondence ensued and the last settlement proposal was made by the Defendant on 11 January 2022, offering to pay HK$48,200. In fact, on 19 October 2022, the Defendant paid the sum of HK$48,200 into Court and gave written notice to the Plaintiff’s solicitors. 203.The Defendant submitted that the offer made under his solicitors’ letter dated 11 January 2022 represented an unconditional offer to settle the parties’ disputes arising from the Incident: Wong Yau Sui v Moral Accord Ltd [2017] 2 HKLRD 322 at paragraphs 44 to 46. The Defendant submitted that he has complied with the procedural requirements stipulated under section 30 LARCO and Order 18 rule 16 of the Rules of the District Court (Cap.336H). The Defendant further submitted that in the event that liability is found against him, the Court will have to consider whether the quantum payable can beat the HK$48,200 tendered; if the answer is ‘no’, by reason of the defence of tender being a substantive defence, this action should be dismissed with costs. 204.As ruled above, the total damages payable by the Defendant to the Plaintiff is HK$59,808.86, thus beating the open offer on 11 January 2022 and the payment into court in the sum of HK$48,200. 205.In the circumstances, the defence of tender is dismissed. XII. DISPOSITION AND COSTS ORDER 206.The Defendant, through his staff member Mr Zhang, was at fault by misfuelling the Car on 1 October 2021, such fault rendering the Defendant liable to the Plaintiff in contract (including under the SOGO and the SS(IT)O). 207.By reason of his breach of the Contract for Refuel Service, the Defendant is liable to pay the Plaintiff damages, namely the reasonable costs of repair of the Car, taxi fares and vehicle rental fares, in the total sum of HK$59,808.86. 208.In relation to costs, on one hand, the Plaintiff successfully discharged her burden of proof in respect of liability while the Defendant put her to strict proof. On the other hand, having considered the nature and scope of repair and the issue of mitigation of loss, the damages awarded by this Court is only 29.61% of the total damages claimed. Moreover, compared with the issue of liability, more substantial time and costs were spent on the issue of quantum including the reasonableness of the method and costs of repair which required the assistance of experts. 209.Looking at the matter in the round, and without the benefit of parties’ submissions especially on the appropriate scale of costs at this stage, I make a costs order nisi that the Defendant do pay the Plaintiff 50% of her costs of the action, including all reserved costs, to be taxed on the District Court scale if not agreed. 210.Despite the damages assessed does not exceed HK$150,000, given the multiplicity of issues and the involvement of expert evidence, I certify the attendance of counsel as being proper in the circumstances of the case. Therefore, the costs order nisi includes a certificate for counsel to the Plaintiff. 211.I thank Mr Wong and Mr Yam for their assistance.
Mr Timothy Y H Wong, instructed by Kong & Tang, for the plaintiff Mr Rex Yam, instructed by Rebecca V. I. Ho & Co, for the defendant | |||||||||||||||||||||
Cases cited in this judgment