MA KWAN HO v. TSENG KIN MAN

DCCJ 3188/2019

[2021] HKDC 1070

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3188 OF 2019

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BETWEEN

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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 2016, where the defendant caused damages to the plaintiff’s vehicle.  The plaintiff instituted the present proceedings against the defendant claiming various losses and damages, including (i) the repair costs of his vehicle, (ii) survey fee, (iii) policy excess, (iv) the loss of use, (v) carpark fee, (vi) costs for coating, windscreen, and rims modification.

2.  On 6 August 2019, in absence of any notice of intention to defend, the plaintiff entered an interlocutory judgment against the defendant with damages to be assessed.  This assessment hearing is held in pursuance of that judgment.

3.  On behalf of the plaintiff, a Witness Statement of Ma Kwan Ho was filed on 20 January 2021.  The plaintiff also relies on an expert’s statement made by Lam Wing Yin Anthony dated 22 December 2020.  At the direction hearing on 21 April 2021, Master B Mak granted leave to the plaintiff to adduce expert evidence without the need of calling the maker of the same.

4.  At the hearing, the plaintiff was represented by Mr Leung of Messrs Patrick Wong & Co, solicitors for the plaintiff.  The defendant is not legally represented and did not attend the hearing.  Upon the perusal of the 8^th Affirmation of Service of Lee Chi Keung filed herein on 11 June 2021, a sealed order of the order made by Master B Mak dated 21 April 2021 (whereby the hearing was fixed) had been duly sent to the defendant at his usual and last known address by ordinary post.  I was satisfied that he was duly notified of, and elected not to attend, the hearing. Accordingly, I decided to proceed with the hearing in his absence.

5.  At the conclusion of the hearing, I indicated that a written decision was to be handed down on 31 August 2021.  This is my decision.

ANALYSIS OF EVIDENCE

6.  Having considered the materials placed before me, I accept that the documentary evidence is consistent with each other and inherently plausible.  I would attach full weight to them.

7.  I also accept the expert opinion given by Mr Lam Wing Yin Anthony (“Mr Lam”).  Mr Lam is a motor surveyor of General Surveyors & Adjusters Limited (“the Adjuster”), the Adjuster in this case.  He has over 32 years of experience in specializing on surveying damaged vehicles and assessing repair costs.  He has examined over 42,000 vehicles of varying extent and nature of damages over his long career.  He has also testified before court as an expert witness in motor claims cases for not less 30 times^[1]. I am satisfied that he is qualified to give expert opinion in respect of the quantum of the plaintiff’s loss and damage.

8.  Mr Lam had physically inspected the plaintiff’s vehicle on 17 February 2016 at the site where the vehicle was parked.  He took photographs of the damages, and some of the photographs were incorporated in his survey report.  He then provided quotation setting out the estimated costs for labour and auto parts for repairs^[2].  I find that his opinion is both reasonable and plausible.

9.  At the hearing, Mr Leung called the plaintiff to testify before the Court.  The plaintiff adopted his witness statement as examinations-in-chief.  He also answered some questions raised by me.  On the whole, I find nothing inherently improbable about his evidence. An exception is that the plaintiff testified that the vehicle was first arrived in October 2015. But after I pointed out the date of first registration as stated in the survey report, the plaintiff fairly admitted that he made a mistake. I accept that that was a genuine mistake, and would not take it against the plaintiff.

PLAINTIFF’S CASE

10.  The plaintiff is the registered owner of a private vehicle bearing registration number NF9621^[3].  The make of the vehicle is Landrover and the model is Discovery Sport 2.0.  The vehicle was manufactured in 2015.  The date of first registration was 16 December 2015.  At the time of the inspection, the mileage was 2,677 km^[4].

11.  At the material times, the defendant was the driver of a private vehicle bearing registration number TS6954^[5].

12.  According to the Statement of Claim, at about 0602 hours on 2 February 2016, the plaintiff’s vehicle was traveling along the 2^nd lane of Tsing Sha Highway towards Hong Kong airport.  The defendant’s vehicle was travelling in front of the plaintiff’s vehicle along the 3^rd lane of the same road in the same direction.  Upon reaching near milestone, the defendant suddenly encroached the path of the plaintiff’s vehicle and caused a collision with the plaintiff’s vehicle^[6].  The plaintiff said that the accident was caused by the defendant’s negligence^[7].

13.  After the collision, the plaintiff’s vehicle was towed to British Motors Limited (“the Garage”) for inspection of damages and for quotation of repair costs.  The plaintiff also submitted the insurance claim form to its insurer, Allied World Assurance Co Ltd.  The total repair costs quoted by the Garage amounted to $561,987, (inclusive of spare parts and labour)^[8].

14.  After receiving the said estimate from the Garage, the plaintiff’s insurer appointed the Adjuster to appraise the estimate of costs.  The repair costs and labour charges were adjusted to $336,810, consisting of $100,053 for labour and $236,757 for parts^[9].  According to plaintiff’s insurance policy, there was net policy excess of $6,980.  The repair costs were settled by the plaintiff’s insurer at $329,830^[10] and the policy excess by the plaintiff himself at $6,980^[11].

15.  According to the motor survey report prepared by the Adjuster, the plaintiff’s vehicle was heavily damaged.  Engine bonnet was misshaped and front windscreen glass was scratched.  Radiator grill with finishers was broken.  A number of the parts of the front bumper, left front fender, front lamps, and left side view mirror were broken and needed to be replaced.  On a close examination, it was also found that other parts such as the air conditioning, air cleaner, air duct, and other parts in the left front were crashed and need to be renewed^[12].

DISCUSSION

(1)   Repair costs

16.  I accept that the total repair costs for the damages sustained as a result of the accident amounted to $336,810.  I am also satisfied that, 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^[13]. There is nothing before me that could challenge the reasonableness of the said amount of repair costs.

17.  According to the official receipt^[14] issued by the Garage, the plaintiff’s insurer paid the sum of $329,830 on 21 July 2016.

18.  I would allow the repair costs in full at the said sum.

(2)   Policy excess

19.  I also find that the defendant should also compensate the plaintiff for the policy excess ($6,980) which he had paid on 5 May 2016.  This payment was supported by the receipt chop^[15] affixed on the sales invoice issued by the Garage dated 5 May 2016.

20.  I would also award the claim for policy excess in full at the sum of $6,980.

(3)   Survey fee

21.  The plaintiff also incurred survey fee in the sum of $750 for the preparation of the motor survey report.  This expense was supported by the invoice issued by the Adjuster^[16], a monthly statement issued by the Adjuster to the plaintiff’s insurer^[17], and the official receipt issued by the Adjuster to the plaintiff’s insurer^[18].

22.  I find the amount reasonable and would allow it in full.

(4)   Loss of use of the vehicle

23.  The plaintiff claims in the Statement of Claim for a sum of $8,185.40 under the head of the loss of use of his vehicle.  According to his oral testimony, he worked at the Hong Kong airport and lived in Lai Chi Kok at the material times.  Because of the accident, he needed to resort to taxi to travel between home and work for a period from 2 February 2016 to 5 May 2016.  He also produced a bundle of receipts of taxi fares in support^[19].

24.  Although Mr Leung did not address this head of damages in his skeleton submission, I accept that the additional travel expenses are in principle recoverable^[20]. However, at the hearing, the plaintiff testified that his usual expenses on fuel amounted to $4,000 per month.  In other words, the total fuel expenditures he had saved in the relevant period (ie $12,000 = $4,000 per month x 3 months) were greater than the additional travel expenses he claimed.  In the circumstance, I am not satisfied that the plaintiff has suffered any loss under this head.

25.  In his closing submissions, Mr Leung said that the loss might be regarded as the plaintiff’s loss of convenience.  With respect, I cannot accept this submission for the simple reason that such a head of loss was not pleaded at all. In any event, I am not able to see how the suggested loss of convenience could be quantified in terms of the taxi fares.

26.  I would make no award in the loss of use of the vehicle.

(5)   Carpark fee

27.  The plaintiff also claims for the carpark fee in the sum of $10,200.  He provided the tenancy agreement[21] for a car park, whereby the plaintiff agreed to rent a carpark space for a monthly rent of $3,400 with a term of 2 years.  This head of claim amounts to a 3-month rent.

28.  With all due respect, I am not able to accept this head of loss either.  As Mr Leung agreed, the liability to pay the rental carpark fee arises from the tenancy agreement, instead of the incident for which the defendant was held liable.  The plaintiff says that such carpark fees had been “wasted”, but such “wasted” costs could not constitute a loss that can be recoverable as a matter of law.

29.  I reject this head of loss as claimed.

(6)   Other heads of losses

30.  In the Statement of Claim, the plaintiff also claims for damages in respect of the coating ($6,000), windscreen ($2,500), and rims modification ($2,500).  He produces a sales invoice issued by Unicon Pro Shop for the coating works done in December 2015^[22], as well as the invoice issued by Empire Auto Service Ltd for the rim modification works done in January 2016^[23]. At the hearing, the plaintiff also provided an invoice issued by Unicon Pro Shop for the windscreen dated 17 May 2016.

31.  The plaintiff testified orally at the hearing that these losses were necessitated by the damages caused by the accident.

32.  The problem with these claims is that no expert evidence was adduced to show that these expenses were direct loss as a result of the accident.  Nor is there any explanation why these items of loss were not included in the expert’s assessment. This problem cannot be cured by the bare assertion of the plaintiff. In my view, without any expert evidence, the mere factual evidence given by the plaintiff is not sufficient to establish the causal link between the two.

33.  In the circumstances, I would not allow these heads of claim either.

(7)   Total amount of award

34.  Accordingly, I hold that the plaintiff is entitled to recover from the defendant the repair costs, the policy excess, and the survey fee.  I would not allow the claims under the loss of use of the vehicle, the carpark fee, coating, windscreen, and rims modification.  I summarize the award for the plaintiff’s losses and damages as follows:-

(1)	Repair costs	$329,830
(2)	Policy excess	$6,980
(2)	Surveyor fee	$750
(4)	Loss of use of the vehicle	Nil
(5)	Carpark fee	Nil
(6)	Coating	Nil
(7)	Windscreen	Nil
(8)	Rims modification	Nil
	Total amount:	$337,560

35.  Accordingly, a final judgment is to be entered in favour of the plaintiff in the sum of $337,560.

INTERESTS

36.  While Mr Leung did not in his skeleton submission make any submission in respect of interests, he submitted at the hearing that he would adopt the usual practice that the pre-judgment interests would be awarded at 1% above the best lending rate from the date of the Writ of Summons until the date of this assessment.  I think that is reasonable and would order accordingly.

37.  There shall also be post-judgment interests at the judgment rate until full payment.

COSTS

38.  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 defendant should therefore pay his costs of this assessment.

39.  According to his statement of costs, the costs incurred by the plaintiff amounted to $100,499.  I find rooms for reduction in respect of the communication with client (item C1) and the other side (item C2), as well as the professional work (item D).  Particularly, the hearing only took about 30 minutes, instead of 3 hours and 30 minutes as claimed.  On a broad-brush approach, I fix the plaintiff’s costs at $60,000, having regarded the complexity and nature of the case.

DISPOSITION

40.  For the reasons as aforesaid, I enter a final judgment in the plaintiff’s favour against the defendant in the sum of $337,560, together with interests thereon at 1% above the HSBC best lending rate from 20 June 2019 to the date of this assessment and thereafter at the judgment rate until full payment.

41.  I also order that the defendant shall pay the plaintiff’s costs of this action, including this assessment of damages, summarily assessed at $60,000, payable forthwith.