CHEUNG MO SHUN v. LAI KAM CHUEN AND ANOTHER

DCCJ 394/2016

[2022] HKDC 1180

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 394 OF 2016

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  This is a hearing for assessment of damages arising out of a traffic accident happened back in 2013, whereby the 1^st defendant (as the driver) and the 2^nd defendant (as the registered owner of vehicle) caused damages to the plaintiff’s vehicle. The plaintiff instituted the present proceedings claiming against the defendants for various losses and damages, including (i) the repair costs of his vehicle, (ii) survey fee, and (iii) search fee.

2.  In absence of any notice of intention to defend, the plaintiff entered an interlocutory judgment on 19 May 2016 against the 1^st and 2^nd defendants with damages to be assessed. This assessment hearing is held in pursuance of this judgment.

3.  The assessment of damages was originally fixed before Master D To on 13 March 2017. It appears from the Court’s records that the plaintiff refused to attend, and to give evidence at, the assessment hearing, and that the learned Master refused to allow the plaintiff to prove his case solely on the papers. As a result, the assessment of damages was adjourned sine die with liberty to restore.

4.  More than 5 years later, in July 2022, the plaintiff took out the application to restore the assessment of damages. Master Bryan Lung acceded to the application on 22 August 2022. The assessment of damages was fixed before me today.

5.  At the hearing, the plaintiff was represented by Ms Wu Yaqing of his solicitors, Messrs Cheng, Yeung & Co. The 1^st and 2^nd defendants (who are not legally represented) did not attend the hearing. According to the 7^th Affirmation of Tse Yiu Tung filed herein on 3 October 2022, the aforesaid order made by Master Bryan Lung (under which today’s hearing was fixed) had been served on the 1^st and 2^nd defendants’ respective last known addresses, as well as the 2^nd defendant’s registered office address, on 30 August 2022. Upon being satisfied that the 1^st and 2^nd defendants have been duly notified of today’s hearing, I ordered at the beginning of the hearing that the assessment of damages be proceeded with in the defendants’ absence.

6.  At the conclusion of the hearing I indicated that a written decision would be handed down on 25 October 2022. My decision is as follows.

ANALYSIS OF EVIDENCE

7.  As mentioned above, the plaintiff failed and/or refused to further participate in these proceedings after the making of his witness statement dated 18 October 2016[1]. These proceedings are now conducted by the plaintiff’s insurer, Zurich Insurance Company Ltd (“Zurich”), under the subrogation clause of the plaintiff’s insurance policy[2].

8.  At this assessment of damages, the plaintiff relies on the evidence of Ms Lam Chung Yan, who filed a witness statement on 23 August 2022[3]. The plaintiff also relies on the Motor Survey Report prepared by Mr Raymond Lee Kai Hung dated 19 June 2013[4].

9.  At the hearing, Ms Wu called Ms Lam to testify before the Court as a factual witness for the plaintiff. Ms Lam is the Assistant Claims Manager of Zurich. She adopted her witness statement as examinations-in-chief. She also answered some questions raised by me. Particularly, she informed me that she started working at Zurich about 4 years ago. Accordingly, she did not have any personal knowledge about the accident or the losses and damages suffered by the plaintiff. All she knew about this case was gleaned from the files of Zurich. Accordingly, I am not able to derive much assistance from her testimony.

10.  I accept the expert opinion given by Mr Lee. Mr Lee is the managing director of Roger Houghton Motor Surveys Limited (“the Adjustor”), the adjustor in this case. He has over 40 years of experience in providing consulting services on motor vehicles, was specialized in the loss adjustment for motor vehicle. I am satisfied that he is qualified to give expert opinion in respect of the quantum of the plaintiff’s loss and damage. I find that his opinion is both reasonable and plausible.

11.  In the present assessment, the most pertinent evidence is the documentary materials, including the expert report. Having considered such materials placed before me, I accept that they are consistent with each other and inherently plausible. I will attach full weight to them.

PLAINTIFF’S CASE

12.  The plaintiff is the registered owner of a private vehicle bearing registration number PZ 418[5]. The make of the vehicle is Bentley and the model is Continental Flying Spur. The vehicle was manufactured in 2011[6]. At the material times, the plaintiff’s vehicle was driven by a Mr Chen Hanzhou[7]. The 1^st defendant was the driver of a private vehicle bearing registration number JR 3899, and the 2^nd defendant was the registered owner of it[8].

13.  At about 6:15 pm on 28 May 2013, the plaintiff’s vehicle was travelling along the second lane of Tolo Highway, near Hong Lok Yuen, Tai Po, New Territories, heading in the direction of Fanling. Due to certain traffic condition, Mr Chen, the driver of the plaintiff’s vehicle, stopped the vehicle. When the queue started to move, Mr Chen released the brake and drove forward, at which time the defendants’ vehicle bumped into the rear end of the plaintiff’s vehicle and caused damages to it.

14.  After the collision, the plaintiff informed Zurich of the accident. Zurich obtained an estimate of repaired costs from Canful Services Centre Ltd (“the Garage”). It was quoted that the total repair costs amounted to $626,828, consisting of $451,828 for parts, $175,000 for labour[9].

15.  After receiving the said estimate from the Garage, Zurich appointed Roger Houghton Motor Surveys Ltd (“the Adjuster”) to appraise the estimate of costs. The repair costs and labour charges were reduced to $491,720.90, consisting of $351,720.90 for parts and $140,000 for labour. Apparently based on the plaintiff’s insurance policy, the plaintiff needed to bear the policy excess and depreciation. As a result, he paid $36,000 for the former and $35,172.10 for the latter[10].

16.  According to Ms Lam, the insurer had paid the Garage the balance of the repair costs at the sum of $420,548.80[11].

17.  According to the motor survey report prepared by the Adjustor, the extent of damages sustained to the plaintiff’s vehicle was assessed to be heavily damaged. Many parts (including parts in rear boot lid, rear quarter panels, back panels, rear bumper) were seriously distorted and needed to be replaced. Other parts (including the rear chassis frames, luggage compartment floor, and rear wheel housings) needed to be repaired[12].

18.  The Adjustor charged $1,000 for the survey fee for inspection and re-inspection of the plaintiff’s vehicle on 1 August 2013.

DISCUSSION

(1)  Repair costs

19.  I accept that the total repair costs for the damages sustained as a result of the accident amounted to $491,720.90. According to the receipts issued by the Garage, the plaintiff paid them the sum of $71,172.10 on 3 August 2013[13], and Zurich paid the sum of $420,548.80 on 3 September 2013[14].

20.  As Ms Wu submitted, even though the repairs costs were partly borne by the plaintiff’s insurer, the plaintiff is entitled to be compensated for the same in full[15]. I agree. There is nothing before me that could challenge the reasonableness of the said amount of repair costs.

21.  Ms Wu submitted that the defendant should also compensate the plaintiff for the policy excess he had paid[16]. I also agree. Again, there is nothing before me that could challenge the reasonableness of the figures.

22.  Accordingly, I would award the repair costs in full at the sum of $491,720.90.

(2)  Survey fee

23.  The plaintiff also incurred survey fee in the sum of $1,000 for receiving instructions, surveying, and reporting on 13 June 2013 and 1 August 2013. This expense was supported by two receipts issued by the Adjuster on 19 June 2013[17] and 2 August 2013[18]. I find the amount reasonable and would allow it in full.

(3)  Search fee

24.  The plaintiff also claimed for search fee of $45 which is said was paid by Zurich. The plaintiff however did not provide any receipt in support of this claim. What he relies on for this head is the evidence given by Ms Lam. But, as I have said before, Ms Lam did not have any personal knowledge about the matter and all she knew are gleaned from the documents retained in Zurich’s files.

25.  At the hearing, Ms Wu referred to the vehicle search result, and asked me to infer that Zurich conducted the search and paid for it. With all due respect, I do not think I can make the inference as suggested by Ms Wu. In my view, the search result alone is not sufficient for me to draw the conclusion that it was Zurich who had actually ordered the search. Nor is there any evidence showing the actual sum that Zurich had paid. In such circumstance, notwithstanding my agreement that the item is recoverable in principle and although the amount at stake is de minimis, I am not prepared to make any award under this head.

(4)  Total amount of award

26.  Accordingly, I hold that the plaintiff is entitled to recover from the defendant the repair costs (including excess and depreciation) and the survey fee. The total amount of damages which the defendant is liable to pay the plaintiff is therefore $492,720.90 (ie, $491,720.90 + $1,000). A final judgment is to be entered in favour of the plaintiff in this amount.

INTERESTS

27.  In her closing oral submission before the Court, Ms Wu submitted that the plaintiff would claim pre-judgment interests at 1% above the HSBC best lending rate from the date of the accident until the date of this assessment.

28.  It is noted in the Opening Submission that the plaintiff claimed pre-judgment interests at half of the judgment rate. Ms Wu clarified at the hearing that the plaintiff would now claim interests at 1% above the HSBC best lending rate instead. I accept that the latter is consistent with the general practice of the Court.

29.  I bear in mind the basic principle that that interest is awarded to compensate the plaintiff for being kept out of money which ought to have been paid to him[19]. However, in the present case, the accident happened on 28 May 2013. According to the Statement of Claim, the 1^st defendant was convicted of the offences of careless driving and of driving a motor vehicle without third party insurance on 16 December 2014. It was until 25 January 2016 (more than 2 ½ years after the accident and more than a year after the conviction) when the plaintiff instituted the present proceedings against the defendants. Save and except the submission that the proceedings were instituted within the limitation period, no other explanation was given for the delay.

30.  As noted in the beginning of this decision, the case was dormant for almost 5 years between 13 March 2017 and 25 January 2022[20]. Ms Wu submitted during her oral closing submissions that the delay was due to the uncooperativeness on the part of the plaintiff. She also referred to the lack of response on the part of the defendants. With all due respect, such an explanation cannot justify a delay of 5 years, not even half of it (see Ms Wu’s suggestion below). Nor can the plaintiff shift the blame for the delay to the defendants because he himself is under a duty to ensure that the case is to be dealt with expeditiously[21].

31.  At the hearing, I raised the query with Ms Wu in respect of the plaintiff’s delay in bringing the action and whether the Court should exercise its discretion to disallow certain pre-judgment interest in respect of the period or the rate. Ms Wu did not dispute that the Court had power to do so, and suggested a deduction of 2 ½ years, namely half of the period of the plaintiff’s inaction between March 2017 and January 2022.

32.  There is no doubt in my mind that the delay is both substantial and inordinate. I do not find it fair for the defendants to bear the consequence of the delay where they were not at any fault. On a broad-brush approach, I would exercise my discretions to disallow the plaintiff’s claim of interests for a total period of 5 years starting from the date of payment (3 September 2013[22]). There would be no discount on the interest rates.

33.  Accordingly, I would award the plaintiff’s interests at 1% above the HSBC best lending rate from 3 September 2018 until the date hereof. There be also post-judgment interests at the judgment rate until full payment.

COSTS

34.  Costs should follow the event. As the plaintiff has obtained a meaningful amount of damages, he should be regarded as the successful party in this assessment of damages. The defendants should therefore pay his costs of this assessment of damages.

35.  According to his statement of costs, the costs incurred by the plaintiff amounted to $189,328. I find this amount to be grossly inflated and disproportionate compared to the size of damages. In particular, I have concern in respect of time spent (27 hours) in communication with client. The plaintiff’s solicitors charge another 27 hours in preparation and perusal of documents (item D1), where the only substantive court documents in this case are a 7-page Statement of Claim, and two short witness statements[23]. Even taking account of the preparation of submissions, the time spent (10 hours) on the attendance of the hearing (item E4) is also excessive. The nature of this case does not justify the solicitors to spend much time on any legal research (item F1). No costs are to be awarded in the preparation of statement of costs (item H1)[24].

36.  In my view, a total of 30 hours at the hourly rate of $2,600 should be more than sufficient for the plaintiff’s solicitors to properly handle this case. I will allow the manual work (item B) and disbursements (item G) in full. On a broad-brush basis, I summarily assess the plaintiff’s costs at $84,028 (being $78,000 for the profit costs, $4,652 for manual works, and $1,376 for disbursements).

DISPOSITION

37.  For the reasons as aforesaid, I enter a final judgment in the plaintiff’s favour against the defendant in the sum of $492,720.90, together with interests thereon at 1% above the HSBC lest lending rate from 3 September 2018 to the date of this assessment and thereafter at the judgment rate until full payment.

38.  I also order that the defendant shall pay the plaintiff’s costs of this action, including this assessment of damages, summarily assessed at $84,028, payable forthwith.