China Light & Power Company, Ltd. v. Ho Kang-hung t/a Ming Tat Plastic Manufactory

HCA002688/1988

1988 No.A2688

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master P.H. O'Donnell in Court

Appearances: Miss C.M. Yeung for Plaintiff.

Defendant absent and not represented.

Date of Hearing: 18th July 1988

Date of Delivery: 12th August, 1988

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ASSESSMENT OF DAMAGES

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1. The Plaintiff claimed against the Defendant for the cost of the supply of electricity to the Defendant's factory premises since the electricity meter was interfered with about 1st December 1978. Interlocutory judgment with damages to be assessed was entered on 12th May 1988 after the Defendant failed to file notice of intention to defend.

2. At this assessment of damages on 19th July last the Plaintiff was granted leave to adduce evidence by way of affirmation. The two witnesses, Wong Fai Ming, a Senior Accounting, Officer with the Plaintiff, and, Cheng Hon Chow, a Revenue Security Engineer with the Plaintiff, were both called upon to explain the technical aspects of the exhibits filed with their respective affirmations. The average daily consumption (ADC) curve relating to the electricity supply meter in Defendant's factory premises produced as Exhibit "CHC-1" by Cheng Hon Chow clearly shows that the average monthly consumption of electricity for Defendant's premises fell dramatically from 1st December 1978. Whereas, the average daily consumption of electricity for the other 11 months of 1978 was 363.9l KWH the average daily consumption figure for December 1978 was only 207.42 KWH. Thereafter the curve chart shows a declining use in electricity supply indicating that the meter had been tampered with from that date. For 1978 the average daily consumption (ADC) of electricity was 402.7 KWH, whereas, for 1979 the ADC was only 215.78 KWH. The curve chart also shows that since 20th August 1986 when a new electricity meter was installed in the Defendant's factory premises the electricity consumption increased noticeably to 321.22 KWH.

3. To assess the uncharged consumption of electricity during the period that the meter had been tampered with, Mr. Cheng exhibited as "CHC-2" a backcharge recommendation. This was calculated on the basis of the mean or average daily consumption of electricity for the 4-month period from 2nd August 1979 to 1st December 1978 prior to the meter being tampered with, and the ADC of electricity for the 3-month period from 11th September 1986 to 10th December 1986 after a new meter had been installed. This mean or average ADC for these 2 periods of actual consumption was 358.2 KWH. This mean daily figure was then used as the basic ADC over the period of tampering from 1st December 1978 to 26th August 1986 being a period of 2,825 days. However, from this total figure it was necessary to deduct the units of electricity actually paid for by the Defendant over the relevant period. As a result of a calculation on this basis the witness, Cheng Hon Chow, arrived at a backcharge recommendation of 538,935 units (KWH).

4. The second witness, Wong Fai Ming, in his affirmation produced a statement of amended account as Exhibit "WFM-1" on the basis of the figures provided by Mr. Cheng Hon Chow. This amended account has been prepared on a monthly basis and includes the revised figure of consumption units from which the original consumption units have been deducted as these units had been charged and paid for. The usual items such as an energy charge, fuel clause and rebate have been taken into consideration in the statement of amended account. In this way Mr. Wong Fai Mine has been able to charge out the additional units of electricity on a monthly basis at the fuel charge rates applicable at that date. The total sum charged for the 538,935 units on this basis over the 92 months that the Defendant's meter was being tapped was $276,549.78.

5. Both witnesses for the Plaintiff in their respective affirmations alluded to the fact that the Defendant in applying for the supply of electricity had agreed to be bound by the Plaintiff's Supply Rules which provide that retrospective adjustment to a customer's electricity account may be made where the meter has been found to have been tampered with, having regard to, inter alia, the Plaintiff's records, available technical data, customer's consumption history, and other relevant factors - (Rule 230.3 Supply Rules).

6. After careful consideration the conclusion has been reached that the amended electricity charges have been professionally prepared and calculated and are a proper basis for this assessment of damages. The only reservation raised with Miss C. Yeung, the solicitor representing the Plaintiff was whether the Plaintiff could claim for damages in contract outside the usual 6-year limitation period. In other words, for the purpose of assessing damages when did the cause of action accrue in this case.

7. In her written submission on behalf of the Plaintiff, Miss C. Yeung argues that the cause of action in this case accrues to the Plaintiff when the Defendant was in breach of his obligation to settle the supplementary account in accordance with Clause 230(5) of the Supply Rules upon Defendant's receipt of the Plaintiff's letter dated 13th January 1988, It is agreed that the date from when the meter was tampered with, namely, 1st December 1978, is not the date when the cause of action accrued to the Plaintiff. The cause of action in this case amounted to a continuing one based on a continuing wrong since 1978, On the authority of the English Court of Appeal in Motional Coal Board v. Colley (1958) 1 W.L.R. 16 there has been the necessary continuance by repeated breaches of recurring obligations on the part of the Defendant in failing to pay the full amount each month for units of electricity supplied by the Plaintiff. In such circumstances the cause of action arose sometime in 1986 when the Plaintiff first had knowledge and became aware that the Defendant had tampered with the electricity meter to record a reduced number of electricity units consumed. These general questions of when the cause of action accrued and whether the Statute of Limitation applies to debar part of the claim are matters going to the existence of liability and should not be relevant to the subject of damages. The Plaintiff in this case of a continuing cause of action is entitled to claim damages for both past loss and prospective loss from the date when the cause of action accrued.

8. The Plaintiff is awarded the full amount claimed as damages; that is, $276,549.78. There will be interest on the sum awarded at the rate of 8% per annum from the date of demand fixed at 10th January 1988 until the date of this assessment. The Plaintiff's costs on this assessment to he paid by the Defendant, and to be taxed if not agreed.

Representation:

Miss C.M. Yeung for Plaintiff.

Defendant absent and not represented.