Tai Cheung Properties Ltd v. Law Ka Man
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DCCJ 1571/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO.1571 of 2010 ________________________________
Coram : Before Master G. Own in Court Dates of Hearing : 17th January 2011 and 27th April 2011 Date of Handing Down Decision : 18th May 2011 _______________________________ ASSESSMENT OF DAMAGES ________________________________ Introduction 1.This is the assessment of damages of the Plaintiff’s claim against the Defendant for damages in respect of a traffic accident happened on 24th July 2009 involving the Plaintiff’s vehicle registration number ET 9881 and the Defendant’s vehicle registration number HM 7051. 2.Interlocutory Judgment was entered on 2nd July 2010 for damages to be assessed and costs upon the Defendant’s failure to give notice of intention to defend. 3.The Defendant had never attended to any part of these proceedings. By an Order of Master B Mak dated 10th November 2010, the assessment of damages hearing was fixed for 17th January 2011 with 1 day reserved. It was also ordered by Master B Mak that the Plaintiff do file and serve an expert report on quantum within 14 days of his Order. The sealed copy Order, Notice of Appointment of Assessment of Damages and Expert Report on quantum were served on the Defendant at his two last known addresses by ordinary post. There is a 3rd Affirmation of Yip Ka Hei confirming such service. I am satisfied with the service and proceed with the assessment in the absence of the Defendant. 4.The Plaintiff was represented by Counsel Mr. Tony Li at the assessment hearing on 17th January 2011. The Plaintiff’s witnesses are PW1 Mr. Berido Amante Paned and PW2 Miss Tam Mung Yu Anit. Counsel in answer to this Court’s enquiry, confirmed that no expert witness will be testifying at the hearing. After the Plaintiff’s case was closed but before Counsel’s final submission, Counsel was informed by this Court that the Expert Report adduced pursuant to Master B Mak’s Order does not contain the Statement of Truth required by Order 38 rule 37A of the Rules of the District Court. Furthermore, the Expert Report does not contain the declaration required by Order 38 rule 37C (1) of the same Rule either. 5.Counsel then sought to rectify the situation and invited this Court to accept the Expert Report simply as a piece of hearsay evidence. This was rejected. It was noted by this Court that no Hearsay Notice had ever been filed. Counsel in reply then submitted that those instructing him had already prepared and signed a Hearsay Notice but had not yet filed or served it. Again, the mere existence of such Hearsay Notice only in the solicitors’ possession which had not been filed or served is neither here nor there. Procedurally speaking and, with respect to Counsel, it seems to me not proper to accept the Expert Report as a piece of hearsay evidence under Part III of Order 38 of the District Court Rules where such Expert Report was directed to be filed and used as such pursuant to the expert directions given by Master B. Mak under Part IV of the same Order 38. 6.The trial, which could have otherwise been completed on 17th January 2011, was then adjourned to 12th April 2011 for the Plaintiff to rectify the situation. Leave was given by this Court to the Plaintiff’s Solicitors to file Affirmation within 14 days to seek leave for re-opening the Plaintiff’s evidence at the adjourned hearing. Costs was reserved. The date of 12th April 2011 was subsequently re-fixed to 27th April 2011. 7.During the adjournment, the Plaintiff filed the following documents –
8.In the Supplemental List of Documents, the Plaintiff included a supplemental Expert Report dated 14th February 2011 by the same maker Mr. K.P. Lau which report was apparently adduced without prior leave of this Court having been obtained. This supplemental Expert Report made reference to the earlier report and contains a Statement of Truth. However, the requirement of Order 38 rule 37C (1) as to expert’s declaration is still missing in the supplemental Expert Report. There are also further additional documents disclosed for the first time. 9.The Supplemental List of Documents, Hearsay Notice, Revised Bundle for Assessment of Damages, Notice of re-fixed date of hearing have been served on the Defendant at his two last known addresses. There is a 5th Affirmation of Yip Ka Hei confirming such service. I am satisfied with the service and proceed with the adjourned hearing of assessment in the absence of the Defendant. 10.At the adjourned hearing on 27th April 2011, leave was granted for the Plaintiff to re-open the evidence. Counsel explained the non compliance with Order 38 rule 37C (1) by the expert in the supplemental Expert Report was due to the expert’s independent legal advice that the declaration of duty was not required to be included in the report. Counsel confirmed the expert will, however, give oral evidence of his notice of his duty as an expert under Order 38 rule 37C (2). 11.As regards the supplemental Expert Report which was filed without leave, Counsel submitted it merely serves as a ‘memoir’ to the earlier report which was filed with leave of Master B Mak. 12.The maker of the 2 Expert Reports, Mr. K.P. Lau, testified at the adjourned hearing as PW3. Mr. Lau under oath in the witness box gave a declaration under Order 38 rule 37C (2). Hence, his evidence was considered as oral expert evidence by this Court. The Plaintiff’s Evidence 13.The Plaintiff’s witness PW1 Mr. Berido, the driver of vehicle ET 9881 at the material time, gave an account of how the accident occurred. He adopted his statement at pages 20 to 23 of the Trial Bundle as his evidence in chief. He also confirmed the areas of damage to vehicle ET 9881 were caused by the subject accident. 14.The Plaintiff’s witness PW2 Miss Tam Mung Yu Anit, who was the office administrator of the Plaintiff, testified at the hearing that her duties include arranging vehicles for the bosses of the Plaintiff. The subject vehicle ET 9881 was bought as a brand new car in 2005 at the price around HK$480,000. Prior to the subject accident, there was no collision or accident. 15.On 24th July 2009 after police investigation had completed at the scene, Miss Tam contacted Dah Chong Motor Service Centre to arrange towing service of the damaged vehicle to the manufacturer factory for obtaining quotation on repair. Later that day, she was contacted by one Mr. Ho Kam Fai of the manufacturer factory giving her a preliminary quotation of two hundred thousand odd dollars for repair costs as the vehicle was seriously damaged. If a detailed quotation is required, there will be a service charge for the quotation at 10% of the quoted repair costs which are payable in addition to the actual repair costs. Having said that, Mr. Ho then suggested Miss Tam to obtain a surveyor’s report to see whether it is worth to repair the vehicle. 16.Upon Mr. Ho’s suggestion and with the Plaintiff’s approval, she arranged Selex Surveyors & Adjusters Company to prepare a survey report (at pages 27 to 41 of the Trial Bundle) at the price of HK$700. The pre-accident value of ET 9881 was assessed to be HK$230,000 and the scrap value was HK$10,000. Mr. Tam confirmed she obtained the surveyor’s name from the Police after she had spoken with Mr. Ho Kam Fai. There was no connection between the Plaintiff and the surveyors company. 17.Eventually, the Plaintiff decided to sell the vehicle ET 9881 at scrap value for HK$10,000 on 17th August 2009. 18.The Plaintiff’s witness PW3 Mr. Lau Kwok Po, the maker of the 2 Expert Reports, testified at the adjourned hearing on 27th April 2011. Mr. Lau gave an account of his qualifications and experience. He is a member of The Institute of the Motor Industry of Hong Kong with 14 years of experience handling motor vehicle surveys. He had joined Selex Surveyors & Adjusters Company for about 4 years. 19.Mr. Lau confirmed the contents of his 2 Reports including the photographs attached were the conditions of vehicle ET 9881 when he carried out the inspection and survey. He assessed the pre-accident market value of ET 9881 at HK$230,000 based upon the then pre-accident market value, the factor of popularity of the type of car and demand. In 2009, a brand new car of the same type of ET 9881 costs over HK$500,000. The second hand re-sale price of the same type of car by car dealers is around HK$270,000. On average, car dealers would be looking at a profit margin of around 5% to 10%. The estimated second hand re-sale price of HK$270,000 had already included the profits of the car dealers. 20.Mr. Lau testified that in his experience, there are no second hand spare parts available in the market for the type of car of ET 9881. The spare parts can only be obtained from the manufacturer and costs would be higher. He formed the view that the repair costs for ET 9881 must be over HK$300,000 especially the axle beam must be replaced. Findings of the Court 21.I accept the evidence of the Plaintiff’s witnesses. I am satisfied that the damage to vehicle ET 9881 was extensive and was caused by the subject accident. 22.I am also satisfied on the necessity of towing charges and survey’s fees incurred by the Plaintiff. The amounts are also reasonable. Quantum of damages 23.In the Statement of Claim, the Plaintiff’s computed the amount of damages to be the pre-accident value of the vehicle ET 9881 plus survey fee and towing service charge less the actual sale price at scrap value. 24.There is evidence before this Court that the repair costs are significantly higher than the pre-accident value of the damaged vehicle. Thus one would consider not worth repairing the damaged vehicle. However, there still remain the question whether the Court should simply assess the quantum of damages to be the difference between the pre-accident and the re-sale value, especially in a case that there is no evidence of another vehicle of similar resemblance had been acquired as replacement. 25.Unfortunately, Counsel for the Plaintiff has not addressed this particular issue nor had he made any legal submissions on assessment. The answer, in my view, turns out to be that whether the vehicle damaged was a total destruction not reparable or should it be taken as total destruction although it could actually be repaired but at substantial costs and therefore unreasonable to repair it. 26.In McGregor on Damages, 18th Edition, on the normal measure of damages in cases of destruction at para 32-052 where it said :
27.Further, at para 32-053 of McGregor on Damages, it said :
28.Further, at para 32-054 of McGregor on Damages, it said :
29.The expert Mr. Lau testified that the extent of damage fell into the so-called “total loss” category within the concept of insurance claim. I accepted his evidence. Thus vehicle ET 9881 could be considered as being “destructed” rather than damaged wanting repair. Further, I also concluded the Plaintiff’s act disposal of the “destructed” vehicle at its scrap value is reasonable in the circumstances. 30.There is no claim for the loss of use of vehicle or any consequential loss arising therefrom. There is no explanation either for not acquiring a similar vehicle after the accident. The fact that there is no replacement of the destructed vehicle would not affect the Plaintiff’s position in terms of its loss and damages. Adopting the principle of restitutio in integrum in assessing damages on destruction of goods, I accept the quantification should be the difference between the pre-accident value and the actual re-sale price, which is the scrap value in this case. I am also satisfied with the scrap value of HK$10,000 to be reasonable in respect of which Mr. Lau had so confirmed in his testimony. Conclusion 31.Based on the above, I assess the Plaintiff’s damages in the sum of HK$274,416 as follows :-
Order 32.I now make the following Orders :-
Representation : Mr. Tony Li, instructed by Messrs. T.S. Tong & Co., Solicitors for the Plaintiff The Defendant unrepresented, being absent | |||||||||||||||||||||||||||||||