Asia Insurance Co, Ltd v. Wong Sui Kwong

DCCJ 3452/2024

[2026] HKDC 921

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3452 OF 2024

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BETWEEN

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ASSESSMENT OF DAMAGES

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(A) Introduction

1.At all material times the Plaintiff is an insurance company authorized to carry on motor vehicle insurance business under the Insurance Ordinance (Cap. 41). The Defendant was and is the registered owner of a private vehicle bearing registration mark XV5170 (“D Vehicle”).

2.Pursuant to a contract of motor-private car insurance dated 28 October 2022 no. AWT/MPC/220-310046157 (the “Policy”), the Plaintiff insured the Defendant and its authozied driver against, inter alia, third party legal liabilities in respect of death of or bodily injury to any person and/or damage to property arising out of any accident caused by or in connection with the D Vehicle during the period from 7 September 2022 to 6 September 2023.

3.Under the Policy, it is the condition precedent to any liability of the Plaintiff that the Defendant shall give notice to the Plaintiff immediately upon any occurrence which may give rise to a claim under the Policy (see Clause 18 General Conditions (b) and Insuring Clause (d)(i)). The Policy also provided for repayment by the Defendant of any amount the Plaintiff is obliged by the laws of any country or by virtue of any agreement between the Plaintiff and the Motor Insurers’ Bureau of Hong Kong to pay for which the Plaintiff would not otherwise be liable under the Policy (see Clause 14).

4.The present case arises out of an accident (“Accident”) on 9 September 2022 at around 8:43 a.m. The D Vehicle collided with a private light goods vehicle bearing registration mark JX 1732 (“JX 1732”) driven by Mr Lam Po Pei (the “1^st Injured Person”), causing personal injuries to both the 1^st Injured Person and Mr Lam Kwok Lun, the passenger of JX 1732 (the “2^nd Injured Person”).

5.It is the Plaintiff’s case that the Defendant had acted in breach of Clause 18 General Conditions (b) of the Policy due to his failure to report the Accident to the Plaintiff.

6.On 31 July 2023, the 1^st Injured Person and 2^nd Injured Person issued pre-action letters to the Defendant. The Plaintiff was also provided with a copy of the said letters.

7.On 2 August 2023, the Plaintiff formally repudiated its liability of indemnity under the Policy. However, by virtue of the Domestic Agreement between the Plaintiff and the Motor Insurers’ Bureau of Hong Kong and the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272), the Plaintiff took over the defence of the claims of the 1^st Injured Person and 2^nd Injured Person. Eventually, settlements were reached with the 1^st Injured Person and 2^nd Injured Person respectively at HK$250,000 (all inclusive) and HK$235,000 (all inclusive). The Plaintiff thus claims HK$485,000 against the Defendant.

8.The basis of the present claim is premised on the decision by Deputy High Court Judge Kent Yee in AXA General Insurance Hong Kong Ltd v Chun Hing Geotechnical Engineering Ltd [2018] 1 HKLRD 848.

9.On 21 June 2024, by way of Writ of Summons, the Plaintiff commences the present action against the Defendant. The Defendant failed to file any acknowledgement of service with notice of intention to defend within the prescribed time. As a result, on 29 November 2024, interlocutory judgment was entered against the Defendant with damages to be assessed.

10.This is the consequent assessment of damages.

(B) The Hearing

11.Pursuant to the Order made by Master K W Yan on 22 January 2026, this action was set down for assessment of damages on 20 May 2026 at 9:30 a.m.

12.At the hearing, the Plaintiff was represented by Ms Vienna Fong. The Defendant is not legally represented and did not attend the hearing. The Defendant is absent. Having considered the 4^th Affirmation of Ng Wai Lim dated 11 May 2026, I am satisfied that the Order of Master K W Yan dated 22 January 2026, the Assessment Bundle, the Plaintiff’s Opening Submissions dated 30 April 2026 were all served to the Defendant, such that the Defendant had been duly notified of today’s hearing. I am satisfied that the hearing should proceed in the absence of the Defendant.

13.At the end of the hearing, I granted final judgment in favour of the Plaintiff, ordering the Defendant to pay damages in the sum of HK$485,000 with interest. I indicated that my reasons would be handed down later, which I now do.

(C) Evidence

14.In support of its claim, the Plaintiff filed the witness statement of Ms Fung Wing Man Fanny (“Ms Fung” and “P WS” respectively), the senior vice president – head of claims of the Plaintiff.

15.Ms Fung attended the hearing and testified in Court. She adopted the P WS. The P WS confirmed the Plaintiff’s case as summarized in paragraphs 1 to 7 above (save the lack of mention of the Domestic Agreement between the Plaintiff and the Motor Insurers’ Bureau of Hong Kong which in my opinion should not affect the present assessment of damages).

16.Ms Fung also explained in P WS the process and basis for reaching the settlement sums with the 1^st Injured Person and the 2^nd Injured Person.

17.In gist, the Plaintiff considers that the settlement sum of HK$250,000 comprises of HK$200,000 for the PI claim by the 1^st Injured Person, who suffered back sprain / back injury, and HK$50,000 for the legal costs and disbursement reasonable.

18.The Plaintiff also considers that the settlement sum of HK$235,000 comprises of HK$175,000 for the PI claim by the 2^nd Injured Person, who suffered neck injury / neck sprain, and HK$60,000 for the legal costs and disbursement reasonable.

19.Ms Fung also confirmed in P WS that the respective sums of HK$250,000 and HK$235,000 had been paid to the 1^st and 2^nd Injured Persons respectively.

20.I have considered the evidence of Ms Fung together with documentary materials, including the cheques in the sum of HK$250,000 and HK$235,000 and the correspondence between the Plaintiff and Messrs. Raymond Lam & Associates (representing the 1^st and 2^nd Injured Persons).

21.I also note in passing that the purported claims by the 1^st Injured Person and the 2^nd Injured Person are largely similar, with same amount of claim under PSLA, Loss of Earnings and Loss of Earning Capacity. I have asked Ms Fung whether the Plaintiff considered the similarity when considering whether the settlement sums paid to the 1^st and 2^nd Injured person were reasonable and she answered in the affirmative. She explained that the Plaintiff considered related legal authorities and the settlement sums are within their estimated amount as calculated.

22.I accept that Ms Fung is a credible witness and the documentary evidence are credible and I shall give full weight to them.

(D) Analysis

23.On the strength of the decision by Deputy High Court Judge Kent Yee in AXA General Insurance Hong Kong Ltd v Chun Hing Geotechnical Engineering Ltd [2018] 1 HKLRD 848, I accept that the Plaintiff is entitled to seek indemnity from the Defendant in the present proceedings.

24.I have considered the decision of Master SH Lee (as he then was) in Liberty International Insurance Ltd v Yeung Kai Chung, Stanley (21/08/2017, DCCJ2775/2015) and Master R Lai (as he then was) in Liberty International Insurance Ltd v Yeung Chi Kong (14/08/2009, DCCJ3385/2008) in which the Court consider the reasonableness of the settlement sum in assessment the damages. I shall follow the same approach to consider the claims of the 1^st Injured Person and 2^nd Injured Person and the reasonableness of the settlement sums.

1^st Injured Person

25.The 1^st Injured Person’s claim was particularized in Messrs. Raymond Lam & Associates’ without prejudice save as to costs letter dated 10 November 2023 (“IP1 Letter”) to be as follows: -

PSLA	HK$150,000.00
Loss of Earnings	HK$272,160.00
Loss of Earning Capacity (termed as “disadvantage on the labour market”)	HK$259,200.00
Special Damages	HK$7,000 for medical expenses HK$5,000 for tonic food HK$1,000 for travel expenses
Total: -	HK$694,360.00 plus interest and costs

26.According to IP1 Letter, the 1^st Injured Person was 25 years old at the time of the Accident. He was 26 years old when he reached settlement with the Plaintiff in January 2024.

27.According to the medical report dated 6 June 2023 by A&E Department North District Hospital, the 1^st Injured Person suffered from back injury with no neurological sign. I have considered the authorities cited by Ms Fong including Ng Wai Tao v Siu Patrick Chun Wai and Another (13/02/2023, DCPI1198/2020) [2023] HKDC 193 in which HK$120,000 was awarded for neck and back soft tissue sprained injury and So Kim Lung v Lee Pak Wai (01/11/2012, HCPI494/2010) in which HK$120,000 was awarded for soft tissue injury on lower back and neck. I agree that the reasonable amount for PSLA would likely be around HK$120,000.

28.I also agree with Ms Fong on her analysis on loss of earnings. A total of sick leave with 163 days with an alleged earning of HK$43,200 would result in a loss of earnings in the amount of HK$234,720 (i.e. HK$43,200 x 163 / 30). Ms Fong in fact used a more conservative calculation, relying on the statistics published by Census and Statistics Department concerning the average income of a painter, with the monthly income being HK$30,775 (i.e. HK$1,231 x 25). The figure obtained by Ms Fong was HK$175,360.82 (i.e. (HK$30,775 + HK$1,500) x 163 / 30).

29.As for loss of earning capacity, I agree that it is not unreasonable for the Court to award at least 3 months, which will amount to either HK$129,600 (using HK$43,200) or HK$92,325 (using HK$30,775).

30.I also accept Ms Fung’s evidence as to the consideration of similarity between the claims of the 1^st Injured Person and the 2^nd Injured Person. However, I agree that even if one adopts the conservative calculation by Ms Fong, the likely claim amount would still exceed the settlement sum, such that the settlement sum is reasonable. The same is true for the 2^nd Injured Person which I shall not repeat below.

31.As for special damages, I agree that in light of the evidence available, it is likely that the claimed amount will be considered as reasonable (i.e. HK$13,000).

32.In the circumstances, I agree that the settlement sum of HK$250,000 (inclusive of costs and interests) is reasonable. Had I been required to consider the reasonableness of costs in the amount of HK$50,000 (being the “breakdown” for the settlement sum), I would also consider the said sum as reasonable having considered the evidence available.

2^nd Injured Person

33.The 2^nd Injured Person’s claim was particularized in Messrs. Raymond Lam & Associates’ without prejudice save as to costs letter dated 11 November 2023 (“IP2 Letter”) to be as follows: -

PSLA	HK$150,000.00
Loss of Earnings	HK$272,160.00
Loss of Earning Capacity (termed as “disadvantage on the labour market”)	HK$259,200.00
Special Damages	HK$6,000 for medical expenses HK$5,000 for tonic food HK$1,000 for travel expenses HK$45,000 for car damages fees
Total: -	HK$738,360.00 plus interest and costs

34.According to IP2 Letter, the 2^nd Injured Person was 63 years old at the time of the Accident. He was 65 years old when he reached settlement with the Plaintiff in January 2024.

35.Albeit lacking medical reports, the diagnosis from the sick leave certificate issued by Dr Wong Chung Yan Patrick was “neck injury”.

36.Similar to the analysis above, I agree that the reasonable PSLA shall be HK$120,000.

37.A 150 days sick leave with an alleged earning of HK$43,200 would result in a loss of earnings in the amount of HK$216,000 (i.e. HK$43,200 x 150 / 30). Ms Fong in fact used a more conservative calculation, relying on the statistics published by Census and Statistics Department concerning the average income of a painter, with the monthly income being HK$30,775 (i.e. HK$1,231 x 25). The figure obtained by Ms Fong was HK$161,375.00 (i.e. (HK$30,775 + HK$1,500) x 150 / 30).

38.As for loss of earning capacity, I agree that it is not unreasonable for the Court to award at least 3 months, which will amount to either HK$129,600 (using HK$43,200) or HK$92,325 (using HK$30,775).

39.As for special damages, the car damages fees in the amount of HK$45,000 were supported by an invoice dated 15 September 2023. I agree that in light of the evidence available, it is likely that the claimed amount will be considered as reasonable (i.e. HK$57,000).

40.In the circumstances, I agree that the settlement sum of HK$235,000 (inclusive of costs and interests) is reasonable. Had I been required to consider the reasonableness of costs in the amount of HK$60,000 (being the “breakdown” for the settlement sum), I would also consider the said sum as reasonable having considered the evidence available.

(E) Conclusion

41.By reason of the above, I hold that the Plaintiff is entitled to recover from the Defendant HK$485,000.00. Costs should follow the event. I will now make the following orders: -

(1) Final judgment is entered against the Defendant in the sum of HK$485,000.00. Interest on the said sum is awarded at the HSBC prime rate +1% per annum from 21 June 2024 (i.e. the date of the Writ of Summons) to the date of judgment and thereafter at judgment rate until payment.

(2) The Defendant do pay the Plaintiff’s costs of this action including today’s hearing for assessment of damages, summarily assessed at HK$213,893, payable forthwith, with certificate for counsel.

42.Last but not least, it remains for me to thank Ms Vienna Fong and Messrs Hom & Associates for the assistance rendered to the court.

Ms Vienna Fong, instructed by Hom & Associates, for the Plaintiff

The Defendant was not represented and did not appear