LAW WAI MING v. POON CHONG SUN

DCCJ 779/2018

[2020] HKDC 1202

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 779 OF 2018

_________________

_________________

__________________________

ASSESSMENT OF DAMAGES

__________________________

Background

1.  This is the hearing for assessment of damages.  Interlocutory judgment has been granted against the Defendant for his failure to file and serve a Notice of Intention to Defend.

2.  The Plaintiff’s claim against the Defendant is for damage to his vehicle in a traffic accident due to the Defendant’s negligence.

3.  The Plaintiff now claims the repair costs of his vehicle and surveyor’s fee.  The Plaintiff waives the claim for travelling expenses during the hearing. 

The Accident

4.  The following facts as pleaded in the Statement of Claim are not challenged by the Defendant.  

5.  The Plaintiff was the registered owner and driver of a light goods vehicle (“the LGV”) who properly stopped in front of traffic lights in compliance with the traffic signal. However, the Defendant who drove his private vehicle from behind failed to stop and bumped into the rear part of the LGV at full speed.  The LGV was severely damaged as a result.  The damage to the LGV was caused by the negligence of the Defendant.  The Defendant was subsequently convicted of careless driving for this accident.

The Evidence

6.  The Plaintiff testifies that the LGV was severely damaged after the accident and it was towed for repair. 

7.  Before the repair, he engaged a surveying firm for an assessment, the assessed repair costs were HK$80,607.30.  He paid the surveying firm HK$1,000 for the survey report with receipt. 

8.  The repair was subsequently done by the repair shop at the said assessed amount of HK$80,607.30 with receipt.  He paid for the repair and personally bore the repair costs as the LGV was covered with third party insurance only.

9.  The said survey report is produced in the hearing, it outlines the damage of the LGV with HK$80,607.30 as the estimation of repair costs.

10.  The Defendant is absent and no evidence has been adduced by the Defendant.

11.  The Plaintiff’s evidence is reasonable and unchallenged and supported by documentary evidence.  I accept the Plaintiff’s evidence in full. 

Surveyor’s Fee

12.  Contents of the survey report are unchallenged.  I accept it is reasonable to engage the surveying firm for an assessment and the sum of HK$1,000 is reasonable. 

13.  The engagement of the surveying firm actually assisted in lowering the repair costs by over HK$20,000.  The original estimate by the repair shop for the repair was HK$100,789, the eventual repair costs came down to HK$80,607.30 after the assessment in the surveyor’s report.

14.  However, I am of the view that the fees for the survey report should more appropriately be claimed as disbursement included in the costs of the action.  I therefore do not allow this item as damages.

Repair Costs

15.  The repair to the LGV is unchallenged and I accept the LGV was repaired for the parts damaged by the Defendant.  The Plaintiff actually paid and I accept to be reasonable the sum of HK$80,607.30 as the repair costs, the only question is whether there should be deduction for betterment.

16.  It was assessed in the survey report that there was betterment of the LGV after repair in the value of HK$15,902.20.

17.  In the case of Wong Ping Mui v Mak Hung On (DCCJ 2874/ 2001, 12 October 2001), HH Judge Cheung (as he then was) referred to paragraph 1328 of McGregor on Damages (16th Ed.) and ruled that a plaintiff could claim betterment as although performance of the damaged vehicle was bound to be enhanced due to the replacement with new parts, the repair was inevitable as a result of the damage, no discount for betterment would therefore be deducted from the repair costs.

18.  This decision was followed by HH Judge Lok (as he then was) in Wong Ngai Shing Preston v Yiu Kwong Yung (DCPI 1115/2007, 12 March 2008).

19.  I agree with the rulings in these two cases.  My view is that the Plaintiff should be entitled to HK$80,607.30 as the repair costs without deduction.

Conclusion

20.  I order that the Defendant do pay the Plaintiff the sum of HK$80,607.30 with interest thereon at the best lending rate of HSBC plus 1% from the date of the Writ of Summons until the date of this judgment and thereafter at judgment rate until payment.

21.  Costs should follow the event.  I make an order nisi that the Defendant do pay the Plaintiff costs of the assessment of damages (including all costs reserved) to be taxed if not agreed.  The costs order shall become absolute in the absence of any application to vary within 14 days.