GRAND SMART INC LTD v. CHOW KIN WAH AND ANOTHER

DCCJ567/2017

[2018] HKDC 117

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.567 OF 2017

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ASSESSMENT OF DAMAGES

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1.  By writ issued on 8 Feb 2017, the plaintiff issued these proceeding to recover damages arising out from a traffic accident on 9 May 2016 (the accident) whereby private car No.TN7031 (plaintiff’s car) owned by plaintiff was damaged by another private car No.LL6562 (defendant’s car) driven by the 1^st defendant as employee, servant and/or agent of the 2^nd defendant.

2.  On 5 May 2017, notice of intention to defend not being filed, interlocutory judgment was entered against the 1^st and 2^nd defendants for damages to be assessed.

3.  The hearing of assessment of damages came before me today.

4.  The plaintiff was represented by Mr Lau Ching Ho Jonathan of Messrs. Leung & Lau (Mr Lau).

5.  The 1^st and 2^nd defendants are not represented and did not turn up before me at all. I am, however, satisfied on the affirmations of service before me that they had been properly notified of this assessment hearing, and served with the assessment bundle etc., and I therefore proceeded with the hearing in the absence of the 1^st and 2^nd defendants as requested by Mr Lau.

Evidence

6.  By order of Registrar Ho dated 12 July 2017, the parties were required to file and serve list of documents by 2 Aug 2017, failing which the defaulting party shall be deemed to have elected not to adduce documentary evidence on quantum.

7.  By the same order, the parties were required to file and serve signed witness statements as to quantum by 30 Aug 2017, failing which the defaulting party shall be deemed to have elected not to adduce evidence on quantum from factual witness. Unless otherwise directed, such statements shall stand as evidence-in-chief.

8.  By the same order, leave was given to the parties to adduce expert motor surveying evidence, limited to one motor surveyor each, with plaintiff nominating Mr Raymond Lee Kai Hung (Mr Lee), and the parties were required to lodge their expert report by 30 Aug 2017, failing which the defaulting party shall be deemed to have elected not to adduce any expert evidence.

9.  On 27 July 2017, the plaintiff filed its list of documents.

10.  On 29 Aug 2017, the plaintiff filed its expert report dated 16  Aug 2017 in respect of plaintiff’s car prepared by Mr Lee (the report) of Roger Houghton Motor Surveys Limited (the surveyor).

11.  On the same date, the plaintiff filed witness statement as to quantum by Ms Liu Tak Yee廖德怡 (Ms Liu), Senior Claims Executive of AXA General Insurance Hong Kong Limited (AXA), dated 25 Aug 2017.

12.  By the said respective deadlines of 2 Aug and 30 Aug 2017, neither did the 1^st nor 2^nd defendants file any list of documents, witness statement as to quantum nor lodge any expert report.

13.  By another order of Registrar Ho dated 11 Oct 2017, the matter was set down for assessment of damages on 29 Jan 2018. By the said order, unless the court hearing the assessment otherwise directs, the plaintiff was given leave to adduce in evidence the report without calling Mr Lee thereof.

14.  At the hearing before me, Ms Liu was allowed by me to adopt her witness statement as to quantum as her evidence-in-chief and Mr Lee was not required by me, and Mr Lau does not call him, to give oral evidence in the box.

Plaintiff’s claim

15.  Mr Lau on plaintiff’s behalf made only 2 heads of claim: a) repair costs of plaintiff’s car in sum of $280,000; and b) motor survey fee in sum of $700.

Analysis

16.  I have carefully and fully considered all evidence, submissions and authorities put before me in this hearing.

17.  Absent contrary defence evidence, I accept the documentary evidence put before me by plaintiff, which is mostly consistent with one another and inherently plausible.

18.  Among others, I accept the expert opinion of Mr Lee and give them full weight. Mr Lee, I am satisfied, is experienced enough to give the said opinion and his assessment of the reasonable costs of repair of plaintiff’s car is, I think in all the circumstances, reasonable and plausible, as being fully supported by post-accident photos of plaintiff’s car showing the damage sustained in the accident.

19.  For Ms Liu, her evidence went unchallenged. And most of her evidence are covered by, and supported by, documentary evidence, though the alleged policy of the plaintiff had with AXA was not disclosed nor produced to prove, inter alia, the alleged excess payable by plaintiff in such policy and there was no reference to such alleged excess in the motor survey report of the surveyor. Nevertheless, there is before me a sales invoices dated 10 Aug 2016 issued by the subject garage evidencing such alleged excess in sum of $8,000 with the chop of plaintiff. On the whole, I find nothing inherently improbable about Ms Liu’s evidence and I accept them as the truth.

20.  On the basis of my assessment of the evidence above, I find as follows.

My findings

21.  On the day of the accident, plaintiff’s car was owned by the plaintiff. On the same date, it was insured by the plaintiff with AXA under a motor policy (the policy).

22.  Plaintiff’s car was manufactured in 2015 with Japan as its country/place of origin. The make is Toyota. The model is Vellfire.  Its body type is station wagon. The seating capacity is 6. Its date of first registration was 31 July 2015.

23.  On the same day of the accident, the 1^st defendant drove defendant’s car as employee, servant and/or agent of the 2^nd defendant. At 1310 hours thereof, the 1^st defendant so negligently drove defendant’s car that its front collided with the rear of plaintiff’s car, with plaintiff’s car heavily damaged at its rear as a result.

24.  Plaintiff’s car was sent to a garage i.e. Crown Motors Ltd. (Crown) for repairs caused by the accident.

25.  By an estimate dated 10 June 2016, Crown quoted repair costs for plaintiff’s car in the sum of $187,330 for labour and in the sum of $271,017 for parts thereof i.e. a total sum of $458,347.

26.  On the instructions of AXA, which received the claim of plaintiff under the policy, the surveyor inspected plaintiff’s car at Crown on 13 Jun 2016 to assess its reasonable repair costs and reported its adjusted repair costs to AXA by way of a motor survey report dated 20 Jun 2016 (that forms part of the report of Mr Lee lodged with court).

27.  Plaintiff’s car was observed (and photos were taken as record) by the surveyor to have been heavily damaged at its rear i.e. the point of the impact in the accident. The items that required respectively replacement and repair are particularized at p.2 of the said motor survey report dated 20 Jun 2016.

28.  The surveyor charged AXA $700 for the survey it undertook of plaintiff’s car in Jun 2016 and AXA had paid the said sum.

29.  According to the report and Mr Lee’s opinion therein which this court accepts, reasonable (and adjusted) costs of repair of plaintiff’s car are in the respective sum of $100,000 for labour and the sum of $180,000 for parts, making a total adjusted repair costs of $280,000.

30.  Under the policy, the plaintiff was required to pay its own excess in the sum of $8,000.

31.  As a result, the plaintiff paid Crown the sum of $8,000 on 10 Aug 2016. And AXA on 23 Sept 2016 paid Crown the rest of the adjusted repair costs in the sum of $272,000 i.e. $280,000 - $8,000 to get plaintiff’s car repaired for the damage its sustained in the accident.

32.  After plaintiff’s car was repaired by Crown, it was returned to the plaintiff.

33.  Subrogated to plaintiff’s claim for damage to plaintiff’s car in the accident, AXA brought this action in plaintiff’s name against the 1^st and 2^nd defendants.

Repair costs of plaintiff’s car

34.  The plaintiff claims the total sum of $280,000 respectively paid by AXA ($272,000) and it ($8,000).

35.  On my finding of facts above, I allow this total sum of $280,000 claimed by plaintiff.

Survey fee

36.  The plaintiff also seeks to recover the fee $700 it paid the surveyor for the Jun 2016 survey of plaintiff’s car. That sounds to me a reasonable sum considering the contents of the report and the work of the survey. I also allow it in full.

Disposition

37.  Accordingly, I enter final judgment in the total sum of $280,700 in plaintiff’s favour against the 1^st and 2^nd defendants i.e. $280,000 + $700.

38.  Mr Lau asked for pre-assessment interest at judgment rate and, failing that, at HSBC best lending rates, as from 23 Sept 2016 until the date of this assessment. I agree with his claim for pre-assessment interest and his proposed starting date. As for the applicable rate, I think the commercial rate of interest he suggested would suffice to compensate the plaintiff.

39.  I therefore further order the 1^st and 2^nd defendants to pay the plaintiff interest on the said judgment sum of $280,700 at HSBC best lending rate(s) from time to time as from 23 Sept 2016 until the date of this assessment.

Costs

40.  Mr Lau finally claims costs of the assessment of damages from the 1^st and 2^nd defendants and asks for summary assessment as per statement of costs he submitted and served on them.

41.  Normally, costs follow the event. Given that the plaintiff was awarded more than nominal damages in this assessment hearing and there is nothing before me to depart from the aforesaid general principle, I agree with Mr Lau and order the 1^st and 2^nd defendants to pay the plaintiff the costs of the assessment of damages, including all reserved costs and the costs of this assessment hearing before me.

42.  Considering the relatively small size of the judgment, to avoid disproportionate expenses of formal taxation and possible delay involved, I agree with Mr Lau that this case calls for summary assessment. Looking at the statement of costs before me in all the circumstances of the case, I assess the costs I award to plaintiff and payable by 1^st and 2^nd defendants above in the sum of $40,000.

43.  Finally, I thank Mr Lau for his assistance.