Tang Yuen Nien V.Ting Chi Shing

DCCJ000329/2001

DCCJ 329/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE EEGION

CIVIL ACTION 329 OF 2001

Coram: Deputy District Judge S. M. SHAM

Dates of Hearing: 7th, 8th, 9th & 10th January 2002

Date of Handing Down Judgment:18th January 2002

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JUDGMENT

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INTRODUCTION

1.The Plaintiff, in this action, claims against the Defendant for damages for a sum of HK$ 220,586.10 being the cost of repair (HK$ 219,786.10) and surveyor's fees (HK$ 800). The claim arose out of an accident involving a number of vehicles in a chain collision which occurred on 23 January 2000 during which the Plaintiff's Mercedes Benz ( the Car ) was damaged. The Plaintiff's car was rammed from behind and pushed forward to hit onto the car in front. The Defendant's vehicle was the first car ramming into another car which caused the chain collision. Judgment was entered against the Defendant on 9th June 2001, the present hearing concerns only with the assessment of damages.

2.At the beginning of the hearing, the plaintiff indicated to the Court that as far as cost of repair is concerned, he now claims for HK$ 199,885.60 by taking into account the depreciation allowance of HK$ 19,900.50, and therefore the total amount of claim is reduced to HK$ 200,685.60.

3.After the accident, the Plaintiff took his car to Zung Fu Garage (ZF)for repair and had paid HK$ 219,786.10 for the repairs and was liable to pay surveyor's fee of HK$ 800.

ISSUE

4.Put shortly, the Defendant disputes the amount of repair cost as being manifestly excessive in light of the damage sustained .The issue before the Court is whether it was reasonable for the Plaintiff to take the car to ZF for repair and whether the charges of ZF were reasonable in the circumstances.

THE EVIDENCE OF PLAINTIFF WITNESS

PW1- Tang Yuen-nien the car owner

5.The Plaintiff bought the car, which was a 1996 make, for about HK$ 900,000 in January 1997 in England and at the time of accident, it had only a 3rd party insurance policy in force and there was no service agreement between the Plaintiff and ZF. The car was the third Mercedes Benz the Plaintiff had purchased, he has all along over 20 years taken his Mercedes Benzes including his previous two to no other garages but ZF only for service and repair. It was LO's, the plaintiff's insurers, which on behalf of the Plaintiff, arranged a motor surveyor from Ming Chi Consultant Company (Ming Chi) to negotiate with ZF for the repair costs. There was an agreement between the Plaintiff and LO's that LO's was entitled to 10% of the amount of damages including legal costs the Plaintiff recovered. As for the surveyor's fee of HK$ 800, LO's paid it first and the Plaintiff would need to pay them back when the matter was settled.

PW2- Yuen Shek-pui

6.PW2 is a service advisor who has worked with ZF for over 30 years. ZF is the only authorized dealer in Mercedes Benz cars and provides service and repairs thereof in Hong Kong. In his first 6 to 7 years of employment with ZF, he worked as a mechanic doing repairs to Mercedes Benz, thereafter, he changed to be a service advisor.

7.In relation to the car, he initially prepared an estimates of the repair cost to be HK$ 251,742.30 (see B.6 to B.10), but after negotiation with PW3, the motor surveyor from Ming Chi, it was reduced to HK$ 219,786.10 ( see B.18 to B.20). As the car was repaired under the name of a car owner, it was the company's policy that no discount would be given to the Plaintiff for the spare parts replaced, such discount would only be granted to clients who are insurance company.

PW3-Ho Chi-biu

8.PW3 is a surveyor on motor vehicle from Ming Chi whose job duties are to inspect vehicle after accident and estimate the cost of repair. He was called upon by an insurance company called LO's to inspect the car and having physically examined the car, and with the benefit of the initial estimates of ZF, he subsequently compiled a report (see B.3 & B.4). He agreed that the cost of repair HK$ 219,786.10 was reasonable by the standard of ZF.

EVIDENCE OF DEFENDANT WITNESS

DW1- Wong Kwok-wai

9.DW1 is the director of Hang Fai Auto Services Company ( Hang Fai ) which has carried on business as car repairers for over 15 years. It deals with all sorts of vehicles including Mercedes and there are over 30 mechanics under its employ. DW1 also has another company dealing in sale of second hand cars.

10.In about late May 2001, DW2 asked him to give a quotation on the price of spare parts and labour costs needed to repair the car. At that time, he was given a quotation from ZF and photos depicting the damage of the car. Having obtained the price of spare parts from Pyramid Universal Sales Limited which is a well-known retailer for selling Mercedes Benz parallel parts and accessories，DW1 prepared a quotation for the cost of repair for the car，assuming the car was repaired by DW1 at his garage, the total amount was estimated at HK$ 68,795.00 of which HK$29,500 being the labour costs and HK$ 39,295 the price of parts (see C P.10 & P.11). The parts to be used would be genuine parts from the manufacturer of Mercedes Benz, albeit parallel imports.

DW2- Lau Chi-ming

11.DW2 is a motor surveyor and owner of Lau Ming Motor Survey company and has 13 years experience as a motor surveyor. On 19th February 2001, he was instructed by the Defendant's solicitors to carry out an assessment of cost of repair on the car, however, by that time the condition of the car had been made good by ZF, he could only rely on the survey report of Ming Chi and quotation of ZF as well as photographs of the damage of the car to make the assessment. He compiled a first report (see B. P.39 to P.41) on 3rd March 2001 based on ZF's information as reference, by taking into account discount of parts and depreciation allowance, the assessment came to be HK$ 184,063.30. On 11th June 2001, DW2 compiled another report with Hang Fai quotation as reference ( see B. P.49 & P.50), by taking away certain items which, in his view, were not necessary, the costs of repair would become HK$ 66,195.00.

Whether the conduct of the Plaintiff was reasonable

12.First of all, I don't find it unreasonable for the Plaintiff to take his car to ZF, the only authorized dealer and garage for Mercedes in Hong Kong, for repair after the accident, given the fact that he had all along taken his Mercedes to ZF for repair and service for over 20 years. The reasonable inference I could draw is that the Plaintiff, having such long standing relationship with ZF over the years, has developed the trust and confidence in the work done by ZF such that no other garages in the street could offer the same.

Whether the charges of ZF were reasonable

13.ZF has given a very detailed report listing each and every items of work needed to be done and various spare parts to be replaced. Although all experts from both sides agreed that the damage sustained by the car was not very serious, the defense did not actually challenged the individual item of work undertaken by ZF on ground of being unnecessary or irrelevant except that DW2 said that certain spare parts should not have been included ( the cost of which is only HK$ 2,600). Indeed, when asked why his quotation report contained much fewer information than that of ZF, DW1 explained that he actually covered the same things as were suggested by ZF, but he just described them in a general way.

14.The Defense complained that ZF had not given any discount to the Plaintiff for the parts replaced and PW3 should have bargained this for the Plaintiff since he was under the instruction of an insurer, LO's, to negotiate with ZF. Furthermore, DW2 said that he had called ZF to make enquiry about discount on parts, and was told by a Mr. Lam, the manager of ZF, that 10% discount would usually be given to parts except net items. But this Mr. Lam was not called to give evidence, as far as this part of evidence is concerned, it is hearsay, I attached no weight to it. PW2 said that it was company policy to give discounts only to insurer clients but not to individual car owners, and I accepted his explanation that as the invoice was in PW1's name, he was therefore treated as lay client and would not be given any discounts.

15.The Defense also argued that depreciation allowance should have been given across the board to all parts replaced. Their reasons being that as the car had all along been serviced by ZF and no records of any replacement of parts in the past, everything was subject to the same deterioration and strain and therefore had the same degree of wear and tear. I don't find this argument convincing, common sense tells us that different part of a car has different degree of motion and exposure, naturally it would give rise to different extent of wear and tear for various parts of a car. In fact, PW2 gave exactly the same reason that because different parts had different degree of wear and tear, some were more serious than others, that was why depreciation allowance was given to certain items but not all.

16.On the whole of the evidence, I prefer the evidence of the Plaintiff's witnesses to the Defendant's as being more reliable, the main problem with the Defendant's case is that their witness did not have the opportunity to examine the car physically, without which their assessment would be no more than a guess. Although they said relying on their experience, they could tell by just looking at the photographs what work was necessary and what parts needed to be replaced, I don't accept this. I believe that the fact that DW1 did not set out the repair work as suggested by him in detail in his report was because he could not do so without inspecting the car. Take for instance, in his report DW1 said he would charge HK$ 500 as labour cost to remove & install both headlamps and both front side lamps and the corresponding work done by ZF under this category, which DW1 meant the same, included the following: " to straighten, reshape rear cross member, trunk lid, spare wheel housing, L/H headlamp housing & front stiffening panel, heat treatment & iron work to facilitate repair, reform as original. To remove rear panel, front bumper, engine hood, rear bumper & other relevant parts for the smooth of body work, replace rear panel, rear bumper covering, front bumper covering, L/H headlamps & other new parts, reinstall, reassemble and readjust as the same." The labour cost charged by ZF for such work was HK$ 27,000. When comparing the descriptions of work of these two versions, it would be too far-fetched to suggest that they were talking about the same sort of work.

CONCLUSION

17.Based on the reasons I stated above, I have concluded that the assessment of cost of repair as put forward by the Defendant was without foundation and too unrealistic. I therefore reject it. As for the Plaintiff, I see nothing unreasonable about the conduct of the Plaintiff in taking the car to ZF for repair nor the charges of ZF too excessive. I conclude that it was a reasonable amount in the circumstances of the case.

18.Judgment is entered for the Plaintiff for the sum of HK$ 200,685.60 with interest thereon at the rate of 11.5% per annum from 23rd January 2000 to the date of judgment and thereafter at judgment rate until payment.

19.Costs of this action be to the Plaintiff with certificate of counsel, to be taxed if not agreed. I shall make it an order nisi, such order will become absolute at the expiration of 14 days from the date of handing down judgment.

Representation:

Mr. Timon Shum inst'd by Messrs. Simon C.W. Yung & Co. for Plaintiff

Miss Janine Cheung inst'd by Messrs. Fok & Johnson for Defendant