Liberty International Insurance Ltd v. Yeung Chi Kong

DCCJ 3385/2008

IN  THE DISTRICT  COURT  OF  THE

HONG  KONG  SPECIAL  ADMINISTRATIVE  REGION

CIVIL  ACTION  NO. 3385 OF 2008

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BETWEEN

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Coram :  Master R. Lai in Court

Date of Hearing : 3 August 2009

Date of Judgment :  14 August 2009

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JUDGMENT

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Case Summary

1.This is an assessment of damages payable by the Defendant to the Plaintiff.

2.This is an insurance claim arising out of a traffic incident occurred on 29 December 2006 (the “Incident”).

3.The Plaintiff was the insurer of a motor insurance (the “Motor Policy”) in respect of a vehicle bearing registration number LJ 4888 (the “Insured Vehicle”).

4.The Defendant was the insured under the Motor Policy and the registered owner of the Insured Vehicle.

5.At the material times, the Defendant was driving the Insured Vehicle which collided with a motorcycle. The driver of the said motorcycle (the “Injured”) sustained personal injuries.

6.The Defendant was charged and convicted of the offence of “careless driving” on 10 August 2007.

7.The Defendant did not notify the Plaintiff of the aforesaid prosecution and conviction.

8.The Plaintiff’s case is that the Defendant’s failure or omission to notify the Plaintiff of the Incident constituted a breach of the Motor Policy and the Plaintiff was entitled to and had repudiated its liability under the Motor Policy.

9.The Injured commenced personal injuries claim against the Defendant in DCPI 568 of 2008 (the “PI Action”) on 13 March 2008.

10.The Plaintiff took charge of the PI Action. The Plaintiff made a payment into Court in the sum of $50,000.00 (the “Payment”) in the PI Action. The Payment was accepted by the Injured and the PI Action was settled.

11.The Plaintiff had also paid $33,700.00 (the “PI Costs”) to the Injured as settlement for his costs in the PI Action.

12.The Plaintiff also incurred costs in the PI Action in the sum of $36,300.00 (the “PI Own Costs”).

13.The Plaintiff claims against the Defendant in this Action for the Payment, the PI Costs and the PI Own Costs in the total sum of $120,000.00 together with interest and costs.

14.The Defendant takes no step in this Action.

15.No notice of intention to defend has been given by the Defendant. Interlocutory Judgment was entered against the Defendant for the Plaintiff’s claims on 2 September 2008 with damages to be assessed.

16.The Plaintiff issued the Notice of Appointment for Assessment of Damages (the “Assessment Notice”) on 30 April 2009 returnable on 20 May 2009.

17.The Assessment Notice was sent to the Defendant on 4 May 2009 by ordinary post. The Plaintiff filed Affirmation of Service herein on 11 May 2009.

18.The Defendant did not attend the hearing on 20 May 2009. Registrar Poon at the said hearing set down 3 August 2009 as the hearing date for the assessment of damages (the “Order”).

19.The Order was sent to the Defendant on 10 June 2009 by ordinary post. Affirmation of Service has been filed herein on 16 June 2009.

20.The Plaintiff filed and served its List of Documents, signed witness statement and Supplemental List of Documents. Affirmations of Service on service of the aforesaid documents have been filed on 5 June 2009, 24 June 2009 and 30 July 2009 respectively.

21.The Defendant does not file any document nor take any step. The Defendant also does not attend the assessment of damages hearing on 3 August 2009.

The Plaintiff’s Claim

22.The Plaintiff claims the following sums against the Defendant:

(1) the Payment in the sum of $50,000.00;

(2) the PI Costs in the sum of $33,700.00; and

(3) the PI Own Costs in the sum of $36,300.00.

Evidence of the Plaintiff

23.The Plaintiff has called its claims officer, Mr. Kung Wai Keung (“Mr. Kung”), to testify at the assessment hearing.

24.Mr. Kung adopted his witness statement filed herein on 19 June 2009 as his evidence.

25.In his witness statement, Mr. Kung recited the following terms of the Motor Policy for the Insured Vehicle:

(1) “In the event of any occurrence which may give rise to a claim under this Policy the Insured [the Defendant] shall immediately give notice thereof to the Company [the Plaintiff] with full particulars. Every letter claim writ summons and process shall be notified or forwarded to the Company immediately on receipt by the Insured. Notice shall also be given in writing to the Company immediately the Insured or any person claiming to be indemnified shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this Policy.” (General Condition 18(b))

(2) “the following shall be conditions precedent to any liability of the Company:

(i) observance of the terms and conditions of this Policy relating to anything to be done or not to be done or to be complied with by the Insured or any other person claiming to be indemnified”. (Clause 1(d))

(3) “If the Company is obliged by the laws of any country within the Geographical Area or by virtue of any agreement between the Company and The Motor Insurers’ Bureau of Hong Kong to pay an amount for which the Company would not otherwise be liable under this Policy the Insured and any other person on whose account the payment is made shall forthwith repay such amount to the Company.” (Clause 14)

26.Mr. Kung says that the Plaintiff’s solicitors advised the Plaintiff to make payment into court in the sum of $50,000.00. After considering injuries sustained by the Injured and the sick leave granted to the Injured, he was of the view that $50,000.00 was a reasonable amount.

27.Mr. Kung confirms that the Payment is inclusive of the Injured’s claim for vehicle damages.

28.In respect of the PI Costs, the Injured claimed $89,000.00. After negotiation between the parties, it was settled at $33,700.00 which the Plaintiff’s solicitors advised as reasonable and acceptable.

29.The Plaintiff had paid $36,300.00 to its solicitors as costs for handling the PI Action.

Findings

30.According to the medical report of Caritas Medical Centre dated 10 October 2007 disclosed in the PI Action, the Injured “sustained multiple abrasions on both knees and right ankle regions” in the Incident.

31.The Injured was granted 15 days sick leave from 30 December 2006 to 13 January 2007.

32.In the Statement of Damages served in the PI Action, the Injured claimed $146,018.50 plus interest.

33.The Injured’s average monthly earnings prior to the Incident was $16,262.71 and the Injured had produced receipts for medical expenses and vehicle repair costs showing that $1,170.00 and $21,113.50 were incurred by the Injured for medical expenses and repair costs respectively. The Injured’s loss of earnings during the period of sick leave was about $8,000.00. Miss Wong submits that to allow about $20,000.00 for damages for “pain, suffering and loss of amenities” to the Injured is reasonable.

34.The Plaintiff made the payment into court in the PI Action on 7 May 2008. The Plaintiff’s solicitors reported the same to the Defendant by a letter dated 9 May 2008. No objection to the payment into court had been raised by the Defendant. The Defendant also takes no step in this Action to dispute the reasonableness of the Payment.

35.I agree with Miss Wong and find that the Payment in the sum of $50,000.00 is a reasonable settlement for the Injured’s claim. I allow this item of the Plaintiff’s claim.

36.The Injured claimed $89,000.00 as his costs in the PI Action. The Plaintiff’s solicitors offered $25,000.00. The Injured’s solicitors counter-offered $68,700.00. The Plaintiff’s solicitors made a further offer of $33,700.00 on 14 July 2008 which was accepted.

37.In a letter dated 29 May 2008 from the Plaintiff’s solicitors to the Defendant, the Plaintiff’s solicitors confirmed the Defendant’s instructions to settle the Injured’s claim for costs at $34,900.00.

38.Pleadings had been closed in the PI Action and certain discovery had been done before the case was settled. In view of the extent of works done by the Injured’s solicitors in the PI Action, I agree that to settle the Injured’s claim for costs at $33,700.00 is reasonable. Evidence adduced shows that the Defendant agreed to settle the Injured’s costs in a sum up to $34,900.00. I also allow this item of the Plaintiff’s claim.

39.The Plaintiff incurred $36,300.00 as its own costs in the PI Action. Particulars of those costs were set out in the Plaintiff’s solicitors’ bill no. 44723 dated 31 July 2008. I accept that this is a reasonable amount in view of the works done. I also allow this item of the Plaintiff’s claim.

40.I assess that the damages payable by the Defendant to the Plaintiff in this Action at $120,000.00 which includes the following items:

(1) the Payment in the sum of $50,000.00;

(2) the PI Costs in the sum of $33,700.00; and

(3) the PI Own Costs in the sum of $36,300.00.

41.I make an order nisi for the Defendant to pay to the Plaintiff interest on the said sum of $120,000 at judgment rate from date of Writ to the date of Judgment and thereafter also at judgment rate until payment in full.

42.I also make a costs order nisi against the Defendant in favour of the Plaintiff for the assessment of damages proceedings to be taxed if not agreed.

43.The above orders nisi shall become absolute after 14 days from the date hereof unless any party shall apply to vary them within this 14 days period.

Miss Irene H.M. Wong of Messrs Fairbairn Catley Low & Kong, Solicitors for the Plaintiff

The Defendant in person was absent.