FU YICK FAI v. CHAN WAI HUNG AND ANOTHER

DCCJ 1340/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1340 OF 2013

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ASSESSMENT OF DAMAGES

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1.  This action arose from a traffic accident in which the plaintiff’s light goods vehicle (“LGV”) was damaged by the 2^nd defendant’s vehicle of which the 1^st defendant was the driver. Interlocutory judgment on liability having been entered against the defendants by consent, this matter came before me for assessment of damages.

2.  The plaintiff claims a total sum of $107,710 comprising the following items:-

3.  Item (c) is not in dispute.  Nor is the labour cost of $17,700 comprised in item (a).  In dispute are the costs of replacement parts under item (a) in the sum of $58,560 and the hiring charge of a substitute vehicle calculated at a daily rate of $1,100 for a period of 28 days.  The defendants further say the plaintiff has failed to take all reasonable steps to mitigate his loss.

4.  There is no dispute as to the relevant legal principles.  In relation to both the repair cost and the cost of hiring a substitute vehicle, the plaintiff can only recover what is fair and reasonable.  See O’Grady v Westminster Scaffolding Ltd [1962] 2 Lloyd’s Rep 238.

The plaintiff’s evidence

5.  Three factual witnesses and one expert were called to testify on the plaintiff’s behalf.

6.  The plaintiff himself testified that he ran a food business and the LGV was used for delivering lunch boxes.  In the morning of 17 October 2011, upon learning about the traffic accident, he contacted one Lau Sing Yue Van Call Centre (“Call Centre”) and rented a substitute van with driver to complete the remaining orders for the day.  From 17 October 2011 to 13 November 2011 when the LGV was undergoing repair (“Repair Period”), he continued to rent the same substitute van at a daily rate of $1,100 which covered the service of the driver.  While he said in his witness statement that his employee driver was injured in the accident, the plaintiff said in court that he in fact had no idea if the driver had sustained any injury as the latter simply deserted after the traffic accident and did not even finish the day’s work.  The LGV was towed to a Man Lee Motor Company (“Man Lee”) which gave a quotation for repair (“Man Lee’s Quotation”).  Cheuk Hwa Hong Surveyors & Adjusters Co. (“CHH”) was then engaged to assess the damage to the LGV and the necessary repair cost.  Upon completion of repair on 13 November 2011, the plaintiff paid to Man Lee the sum of $76,260 in accordance with CHH’s assessment.

7.  Under cross examination, the plaintiff accepted that if not for the desertion of his driver, he could have rented a bare van at a lower cost.  Having been referred to a pamphlet of another car rental company who charged a daily rental of $410 for a van, he accepted that he could have hired a van at more or less the same charge.  He further accepted that given the hiring of a substitute van with a driver, he enjoyed a daily saving of $350 being the wage of his own driver and $150 being fuel expenses so that his daily loss during the Repair Period should be $600.  The plaintiff further admitted he had not obtained quotations from other garages as he had used the service of Man Lee for six years for regular maintenance and major repair.  He disagreed with the suggestion of Mr Pun, counsel for the defendants, that he could have obtained alternative quotations before towing the LGV to Man Lee when he as a layman was unable to describe the damage to the LGV over the phone.  He accepted that for at least a week the LGV was left with Man Lee without any repair being carried out while CHH’s motor survey report (“CHH Report”) was pending.

8.  Mr. Mak Wing Hong of Man Lee (“Mr. Mak”) testified to the repair to the LGV carried out by Man Lee and the plaintiff’s payment of the repair cost.  Upon his inspection of the damaged LGV, he prepared Man Lee’s Quotation in which he gave an estimate of the likely labour cost and set out, inter alia, the prices of replacement parts quoted from Crown Motors Ltd (“Crown”).  He said his estimate of the likely labour cost did not represent the number of days the repair would take as there might be several vehicles requiring repair at the same time and Man Lee might not be able to attend to the LGV immediately.  There would also be waiting time for delivery of parts or in between steps such as for paint to dry up after re-spraying.   Due to the lapse of two years, he could not recall from whom he purchased the parts used on the LGV and had not kept the receipts therefor.  He had previously purchased parts from Crown and was offered a 10% discount on producing the stamp chop of his garage. 

9.  In cross examination, Mr. Mak admitted that, while the prices in Man Lee’s Quotation were quoted from Crown, he would first check to see if parallel goods were available and would buy from Crown only if parallel goods were unavailable.  He went on to admit to have used some parallel parts on the LGV although he was not asked to identify those items or to tell if and how much cheaper those parallel parts were when compared with original parts.    

10.  As to the time taken for the repair of the LGV (without taking into account waiting time), Mr. Mak could not recall the actual time taken but reckoned it would take at least 11 to 12 days and up to 15 days if re-spraying was required.  He remembered a week had gone by before repair began.  He fairly admitted that he first dealt with major repair items and attended to the remainder as and when free so to do. Due to the limited space of his garage, he would in the meantime attend to other cars that were easier to fix so as to free up parking space. 

11.  Mr. Ho Kwok Tung (“Mr. Ho”) was the driver of the substitute van.  In his witness statement, he said the plaintiff called the Call Centre on 16 October 2011 asking for a van with a driver.  He exhibited to his statement copy receipts for the plaintiff’s payment from 17 October 2011 to 13 November 2011.  When his attention was drawn to his own reference in the witness statement to 16 October 2011 as the date when the plaintiff contacted the Call Centre, Mr. Ho was only able to say the plaintiff called at 9am to 10am and he started working for the plaintiff on the very same day.  I accept Mr. Ho to be an honest witness and the date when the plaintiff first contacted the Call Centre should be 17 October 2011 instead of 16 October 2011.  Mr. Ho also explained how the daily rate reflected the extra service he rendered as driver and how the receipts he issued to the plaintiff were prepared.  He admitted that on the first day he started work after 10am instead of 8am but the plaintiff nonetheless paid him the full daily rate ($100 x 11 hours) to acknowledge his extra service.  He also admitted that during the 28 days with the plaintiff he could occasionally leave before 7pm but would still charge the full daily rate.  Given my ruling below, however, no adjustment by reason of the same is necessary.

12.  Mr. Leung Wing Wah (“Mr. Leung”) was the author of the CHH Report and was called as the plaintiff’s expert witness.  There is no dispute as to his expertise.  In the CHH Report, Mr. Leung applied a discount rate of 10% to all prices of replacement parts set out in Man Lee’s Quotation before adjusting the total price to $58,560.  In his supplemental expert report, he said he had enquired with Crown by phone to ascertain the unit prices of those parts.  It is his evidence that ordinary garages of a small scale would enjoy only a 10% discount when purchasing original parts from Crown, hence the discount rate he applied in the CHH Report.  The same discount rate was applied to replacement parts by other motor surveyors, he said.  To buttress his evidence, Mr. Leung produced four reports of other surveyors and three other survey reports of CHH in which the same discount rate was applied.  Of other surveyors’ reports, one relates to a vehicle of a similar make and age to the LGV.  No issue was taken by the defendants as regards Mr. Leung’s reliance on other surveyors’ reports. 

13.  Mr. Leung said Crown would offer more discount to garages of a larger scale who would make bulk purchases.  As these garages only account for a tinny portion of the local market, motor surveyors would not assess market prices on the basis of discounts available only to such garages.  To support his saying, Mr. Leung asked a car repairer to purchase two of the items in question from Crown in January 2014 (“January 2014 Purchase”) and the receipt does show a mere 10% discount.   

14.  Under cross examination, Mr Leung confirmed that his assessment was, as a matter of standard practice, based on the assumption that original parts would be used and that his assessment would not be affected by the possibility of parallel parts being used.  He accepted that if there be clear information that a garage would obtain a larger discount on original parts or that parallel parts would be used, he would conduct his assessment differently.  However, no garage had ever told him in advance of his assessment that larger discounts would be available or parallel parts would be used.  He was unable to say if parallel parts would be half as expensive of original parts but he emphasized the lack of guarantee or warranty for parallel parts.

The Defendants’ Evidence

15.  The defendants called one factual witness and one expert witness.

16.  Mr. Wong Kwok Fai (“Mr. Wong”), General Manager of Auto Power Towing Co. Ltd. (“Auto Power”), gave evidence that he obtained at the request of Mr Lau Ming (“Mr. Lau”), the defendant’s expert, a quotation from Crown dated 12 December 2013 (“Formal Quotation”) setting out (retrospectively) the October to December 2011 prices of the same replacement parts as those found in Man Lee’s Quotation. [1] He further deposed to his knowledge acquired through running a car repair business over the years that all local dealers of automobiles would habitually offer to car repair companies or garages discounts on replacement parts due to market competition.  In the absence of such discounts, car repair companies or garages would mostly opt for parallel or second hand parts which would definitely be more economical (which could be half as expensive, said Mr. Wong during re-examination).  Mr. Wong, however, did not depose to the discount rates offered by Crown to compete with parallel suppliers. 

17.  In cross examination, Mr. Wong agreed that his company was a major towing and car repair company who had a 90,000 sq. ft. garage to accommodate over 100 cars at any one time and who regularly ordered replacement parts from Crown with the value of monthly orders averaging at $30,000 or so.   While admitting that his company enjoyed discounts offered by Crown, Mr. Wong said he was not sure if lower discounts would be offered to garages of a smaller scale such as those which could serve only two to three cars at any one time.  He said Crown would from time to time organize functions for 40 to 50 selected buyers who made larger purchases of replacement parts, including his company.  From this source as well as from the sales personnel of Crown, he learnt that Crown would offer special discounts or prices to almost anyone in respect of more popular parts, such as bonnets and headlamps which are prone to damage in a car accident, due to competition from parallel suppliers.   

18.  Mr. Lau, whose expertise is not in dispute, was instructed by the defendants’ insurer to carry out a survey on the LGV on the basis of the CHH Report and the photographs taken by Mr. Leung.  In his report thus prepared, Mr. Lau did not challenge the conclusion of the CHH Report that the various damaged parts particularized thereunder should be replaced.  He further agreed with the labour cost at $17,700.  He reckoned that the repair should take about 12 days.    

19.  In his report, Mr. Lau observed that:

“ it has all along been a custom and trade practice that Crown Motor Ltd. would offer discount prices for all spare parts of Toyota vehicle to the garages/repairers who elect to purchase same from this Hong Kong authorized sales agent. To my understanding, Crown Motor Ltd. elects so to do because there are a number of competitors (i.e. parallel import traders) who directly made bulk purchase of spare parts of Toyota vehicles for onward sale purpose in Hong Kong. The prices offered by these parallel import traders are always very competitive.”

(My emphasis)

20.  Mr. Lau said he had verified with Crown the prices quoted by Man Lee and confirmed the same to be the marked original prices of the relevant spare parts at the material time. He then enlisted the assistance of one Hang Fai Auto Services Ltd. (“Hang Fai”), a shareholder of Auto Power, in obtaining from Crown an informal quotation of the current prices of the same spare parts (“Informal Quotation”), which were the same as those in October 2011 according to the sales department of Crown.  The total price of parts (including a sum of $500 for minor parts) comes to $22,347.

21.  In his supplemental survey report, Mr. Lau relied on the Formal Quotation and adjusted his assessment of the cost of replacement parts for repairing the LGV to $20,482.60.  Adding back labour cost, the total repair cost in his assessment comes to $38,182.60.

22.  In cross examination, Mr. Lau disagreed with the proposition that smaller garages would only get a 10% discount from Crown.  While in his survey report he only referred to Crown’s practice to offer “discount prices for all spare parts of Toyota vehicles”, Mr. Lau distinguished between discount prices and special (and much lower) prices during oral evidence.  He said special prices would only be offered for replacement parts in respect of which parallel goods were available; and if parts were being sold at special prices, no further discount would be offered.  In the case of parts to which special prices did not apply, the discount rate would depend on the sale volume so that buyers like Hang Fai would enjoy a larger discount. With regard to the Formal Quotation, Mr. Lau said all items therein were special price items albeit presented as discounted items because a parallel market existed in respect of all such items.

23.  Mr. Lau accepted that he did not spell out such a distinction in his written reports and that one would not be able to tell the prices in the quotations were special prices rather than discount prices.  As to how he came to know those prices were special prices, Mr. Lau said he would check the prices of both original and parallel parts.  Furthermore, when he called Crown, its personnel would advise him over the phone should special prices be applicable. 

24.  With regard to the proposition that surveyors would apply a 10% discount to prices of replacement parts if neither the source of parts nor the discount offered to a particular garage is known to the surveyor, Mr. Lau said it would depend on the make of the vehicle.  In the case of Toyota vehicles, he said, Crown had for years been and was up until now still offering special prices for spare parts. As to the fact that only a 10% discount was offered by Crown in the January 2014 Purchase, Mr. Lau reckoned there might have been a shortage of supply of parallel goods so that Crown withdrew the special price and offered only a modest discount.

Reasonable cost of hiring a substitute vehicle

25.  As said, the plaintiff accepted that if not for the desertion of his driver, he could have rented a substitute van without a driver.  He further accepted that in hiring the substitute van with Mr. Ho serving as driver, he enjoyed a saving of $500 so that his daily loss during the repair period should be $600.  Mr. Chan, counsel for the plaintiff, did not seriously dispute this in his closing submission. 

26.  The figure of $600 is, however, just a fallback for the defendants as Mr. Pun urged this court to adopt the figure of $400 instead.  He relied on the plaintiff’s acceptance in cross examination that the hiring charge of a van without driver should be around $300 to $400 and on the fact that the desertion of the plaintiff’s driver was through no fault of the defendants. 

27.  I agree that the defendants should not be held accountable for the plaintiff’s need to engage the service of Mr. Ho.  On the other hand, however, all the defendants had offered by way of evidence as to the hiring charge of a bare substitute vehicle was the rates charged by another car rental company, which I find to be scanty.  The defendants’ case is not improved by the plaintiff’s acceptance of the defendants’ assertion as to the market rate when it is unclear as to the basis for the plaintiff’s agreement and when the burden always lies with the defendants to put forward concrete evidence as to the market rates.  In the circumstances, I shall adopt the figure of $600 for the present purpose.

28.  The next question is the reasonable length of repair time so that the defendants should pay for the cost of a substitute vehicle during the same period.  In the instant case, the plaintiff was obliged to hire a substitute vehicle for the purpose of his business from the very moment the LGV was towed to Man Lee up till completion of repair, hence his claim on the basis of the entire Repair Period.  There is no dispute that the first week was in fact taken for preparation of the CHH Report before repair began.  Mr. Pun submitted that the preparation of a survey report should not take a week.  Mr. Leung was not questioned as to why a week was taken and whether he could have his report made available sooner.  Given the apparently standard format Mr. Leung adopted for preparing the CHH Report, however, I agree with Mr. Pun that the report could have, with reasonable dispatch, been completed in less than a week.  Mr. Mak admitted that when repair of the LGV went under way, he was not occupied only with the LGV as he would attend to other easier repair work.  This should to some extent lengthen the time taken for the work on the LGV to finish.  Doing the best I can, I find it fair to deduct the Repair Period by 6 days to reflect the period during which the plaintiff was deprived of the use of the LGV by reason of the traffic accident and for which the defendants should be held liable. 

29.  I assess damages under this head at $13,200 ($600 x 22 days).

Reasonable cost of replacement parts

30.  Both the plaintiff and Mr. Mak had testified to the payment of repair cost in the sum of $76,260 and I have no reason to hold otherwise.

31.  The parties’ respective experts gave divergent evidence on the cost of the replacement parts concerned.  In a nutshell, Mr. Leung’s evidence is that to garages of a scale like that of Man Lee, Crown would only offer a 10% discount.  According to Mr. Lau, special prices applied to the replacement parts in question so that Man Lee should have been able to procure such parts at a much lower cost.

32.  It is trite law that an expert’s role is to assist the court in its task and it is for the court to independently assess expert evidence and come to its own conclusions.  See Hong Kong Civil Procedure 2014, Vol1, para 38/36/1.  When it comes to the factual part of the evidence of an expert, it is verifiable and is reliable or unreliable as any other piece of factual evidence.  See Nina Kungv Wang Din Shin (2005) 8 H.K.C.F.A.R. 387 at §20, per Chan PJ.  

33.  I have heard evidence from two experts as to the practice of Crown in pricing original replacement parts.  The absence of direct evidence from Crown would escape no one’s attention.  This court is left with the unenviable task of having to rule on something that would otherwise be readily ascertainable had a representative from Crown been called to testify on the prices a garage in Man Lee’s position could obtain at the material time.

34.  Prima facie, Mr. Leung’s evidence as buttressed by the supporting documents he produced appears to be well-reasoned and sound.  The burden is on the defendants to prove otherwise.

35.  Apart from the Formal Quotation he obtained from Crown (to which I shall return below), the significance of Mr. Wong’s evidence lies in his information that Crown would offer special discounts or prices to almost anyone in respect of more popular parts due to competition from parallel import traders.  The problem with Mr. Wong’s evidence is two-fold.  First, all he gathered from his sources was nothing but hearsay.  That may explain why he said “almost” all buyers could buy spare parts at special discounts/prices.  As his experience was confined to a company who was among the privileged few whom Crown would invite to attend its functions and who would be able to enjoy larger discounts through making bulk purchases, Mr. Wong had (or professed to have) little knowledge of discounts enjoyed by smaller garages.  His factual evidence as to what other garages might get is therefore unreliable.

36.  While Mr. Wong’s evidence may appear to lend support to Mr. Lau’s evidence, there are notable differences between them.  First, according to Mr. Wong, all local dealers of automobiles face competition from parallel import traders and would therefore habitually offer discounts on replacement parts.  Mr. Lau, however, confined his evidence to the practice of Crown in pricing Toyota spare parts.  Secondly, Mr. Lau said special prices were available for all Toyota spare parts but Mr. Wong referred only to more popular items.  While there is no evidence as to the range of products available from parallel import traders, it is not unreasonable for one to assume that less popular items are more readily obtainable from an authorized dealer than from parallel import traders who would not be obliged to maintain a full range of supplies.  If that assumption is correct, one can see no reason why Crown should cut down unit prices of all spare parts, be they popular or otherwise, as Mr. Lau’s evidence suggests. 

37.  The more pertinent part of Mr. Lau’s evidence is his assertion that all replacement parts in question were special price items because of the existence of a parallel market.  This is an assertion as to facts.  The basis of Mr. Lau’s assertion is, however, dubious.  It is a combination of hearsay from Crown personnel (as to the prices being special ones) and Mr. Lau’s own observation regarding the prices of parallel parts.  Needless to say, hearsay evidence can be accorded very little weight if it be determinative of an issue.  And there is simply no evidence whatsoever on the state of the parallel market, and more importantly, the prices one can obtain from this market.  All I heard was conflicting evidence as to whether parallel parts could be half as expensive as original ones.  Without concrete evidence in this regard, one has no way to find out, in the absence of direct evidence from Crown on its pricing practice, if Crown was in fact compelled by market force to bring its unit prices down to, for instance, those set out in the Informal or Formal Quotation.  This is an unsatisfactory state of affairs that must militate against the defendants with whom the burden of proof lies.

38.  Mr. Lau assumed a bold position when he distinguished Toyota vehicles from vehicles of all other makes and asserted that Crown was up until now still offering special prices for spare parts.  This would necessarily entail the suggestion that Toyota vehicles have over the years been so popular that a parallel market exists for all Toyota spare parts whereas vehicles of all other makes do not enjoy the same popularity (which would, ironically, save their dealers from having to give large discounts for original parts as Crown did in the face of a vibrant parallel market).  There is, however, no evidence as to this other than Mr. Lau’s assertion.  Mr. Lau was given a chance to comment on the discount rate adopted by Mr. Leung which is supported by evidence of other surveyors similarly applying the same discount rate for vehicles of various makes, including a Toyota van apparently similar to the LGV.  Rather oddly, Mr. Lau at first declined to comment and drew the said distinction between Toyota and other makes only when pressed for an answer.  It remains unclear why, notwithstanding the special status of Toyota vehicles, a 10% discount was applied to the said Toyota van by another surveyor.

39.  As to the Informal Quotation and the Formal Quotation retrospectively obtained by Hang Fai in 2013, I have a number of observations. 

40.  First, it is difficult to understand why none of the gross prices in the two quotations, which were only half a year apart, were the same (although the same discount rate was applied to each corresponding item in both quotations). [2] Further, all these retrospectively obtained gross prices are higher, some considerably higher, than those found in Man Lee’s Quotation, which was obtained from Crown in October 2011.  Of the 14 specific items, 11 of them are priced 6% to 31% higher and the rest 54%, 60% and even 92% higher.  A huge discount rate between 58.50% and 79.74% was then applied to every item to arrive at a net price much lower than those featuring in Man Lee’s Quotation.[3]    The existence of three sets of gross prices for the same spare parts gives rise to a doubt as to the pricing practice of Crown which only direct evidence from Crown can resolve. 

41.  Secondly, as Mr. Lau accepted during cross examination, it is not immediately clear from either quotation that the net prices were special prices.  On the contrary, in the Formal Quotation, Crown expressly applied a discount rate to each unit price and did not shy away from disclosing the huge downward adjustment.  If what Mr. Lau said about Crown’s practice is true, one wonders why Crown did not simply set out the net prices and then identify the same as special prices so that no discount would be offered.  Mr. Lau’s bare assertion that the prices in the Formal Quotation are special prices can hardly explain away the obvious contradiction.   

42.  Lastly, it remains doubtful as to whether the gross prices and discount prices set out in the Informal Quotation and the Formal Quotation should apply to all buyers or were quoted by Crown in recognition of the status of Hang Fai as a favoured patron. Had these low prices been offered to all garages, one wonders why Mr. Mak would first check the availability of parallel parts and would buy from Crown only if no parallel parts could be secured.  If prices were more or less the same, why would one prefer sources other than the authorized dealer?

43.  There came the January 2014 Purchase.  Mr. Lau could offer no explanation other than attributing the low discount to the possibility of a shortage of supply of parallel parts so that Crown might have taken away the special prices.  However, the two items were both mirrors which should be prone to damage and should therefore be popular items.  In just a month ago, Hang Fai was able to obtain a 78% discount for both items.  The sudden withholding of special prices within a short span of time is not easily explained by a shortage of supply of parallel parts.  It may well be that what Mr. Lau said at the beginning of his cross examination rings more truth.  There he said to the effect that knowing the prices offered by parallel import traders, Crown when approached by a buyer of spare parts would at first instance quote the gross prices but would adjust the same to compete with parallel import traders should the customer manage to name the prices charged by the latter.  This may better explain the huge difference between the discounts obtained by Hang Fai and Mr. Leung’s agent in December 2013 and January 2014 respectively.  This also suggests Crown would charge its own prices whenever possible even in the face of competition from parallel import traders and is/was at most amenable to price bargaining.

44.  All in all, I am not satisfied that special prices, by which I mean prices with more than a 10% discount, were offered by Crown to all garages including Man Lee at the material time.  I therefore adopt the conclusion of the CHH Report and assess the cost of replacement parts at $58,560.

45.  Mr. Pun referred to Mr. Mak’s admission to have used some parallel parts in repairing the LGV and submitted that Mr. Mak had charged the plaintiff at an inflated price.  He further submitted that the plaintiff had failed to take all reasonable steps to mitigate his loss in that he had sent the LGV to Man Lee without checking with other garages as to the length of repair time or comparing the prices of other garages, thereby allowing Mr. Mak to charge an inflated price.  He had therefore failed, through unreasonable inaction, to avoid such loss and could not recover damages therefor.  In this connection, Mr. Pun relied on the following passage in the judgment of the New South Wales Supreme Court in Zdrilic v Fuchs [2008] NSWSC 486: “…it seems likely that the liability of a defendant to pay something less than the actual costs of repair will turn on evidence that the repairs could have been done at a lower costs and that the plaintiff acted unreasonably in not obtaining an alternative quotation or further quotations…”  Mr. Pun also relied on Smith v Littlewoods Ltd [1987] 1 AC 241 at 272A-C and submitted that the defendants should not be held liable for the deliberate wrongdoing of Mr. Mak in charging the plaintiff an inflated price.

46.  Notwithstanding Mr. Mak’s admission of having used some parallel parts, I take no account of this admission in my assessment of the reasonable cost of replacement parts. First, there is no evidence as to whether and the extent to which Mr. Mak’s use of parallel parts would have brought down the repair cost.  Mr. Pun simply assumed the repair cost would be lower than the billed amount.  More importantly, I take the view that the plaintiff is entitled to the use of original parts in effecting repair to the LGV.  His duty to mitigate loss does not oblige him to go so far as to procure parallel parts which would, as Mr. Leung said, come without guarantee or warranty.  I therefore subscribe to Mr. Leung’s adoption of prices of original parts without taking into account the possibility of parallel or even second hand parts being used.  That being so, whether or not parallel parts were in fact used in the course of repair, with or without the plaintiff’s endorsement, has no bearing on the assessment of the plaintiff’s entitlement.      

47.  Nor do I find the plaintiff to be unreasonable in not obtaining quotations from other garages. On the one hand, there is no evidence that other garages would quote differently or act more swiftly in the actual implementation of repair.  On the other hand, I accept the plaintiff’s evidence that he as a layman was unable to describe the extent of damage to car repairers over the phone, hence his decision to tow the LGV to Man Lee for the latter to identify the damage.  It would be fanciful to suggest the plaintiff could tow his vehicle to different garages to obtain quotations before settling for what he might believe to be the lowest one.  More pertinently, I take the view that the plaintiff was entitled to entrust his vehicle with his trusted garage whose service he had used for years.  While the plaintiff did not have quotations from other garages for comparison, he had taken a reasonable step to engage the service of a surveyor to assess Man Lee’s Quotation, which would be a better safeguard against inflated prices than his own shopping around.  In the circumstances of this case, I find the plaintiff to have done all that was reasonable and necessary to mitigate his loss.

Conclusion         

48.  My assessment is as thus:-

49.  The defendants do pay the plaintiff damages in the sum of $90,110 with interest thereon at judgment rate from the date of writ to the date of this judgment, and thereafter at judgment rate until payment.

50.  I make an order nisi that costs of assessmentbe tothe plaintiff, to be taxed if not agreed with a certificate for counsel.  The order nisi shall become absolute unless an application is made for variation of the same within 14 days from the date of judgment.