CHINA PANG AN INSURANCE (HONG KONG) CO LTD v. CHUI LAU WAH AND ANOTHER

DCCJ 2447/2009

IN  THE DISTRICT  COURT  OF  THE

HONG  KONG  SPECIAL  ADMINISTRATIVE  REGION

CIVIL  ACTION  NO. 2447 OF 2009

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JUDGMENT

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Case Summary

1.  This is an assessment of damages payable by the Defendants to the Plaintiff.

2.  This is an insurance claim arising out of a traffic incident occurred on 21 July 2007 (the “Incident”).

3.  The Plaintiff was the insurer of a motor insurance (the “Motor Policy”) in respect of a vehicle bearing registration number MW 439 (the “Insured Vehicle”).

4.    The 1^st Defendant was the driver of the Insured Vehicle at the material times and the 2^nd Defendant was the insured under the Motor Policy and the registered owner of the Insured Vehicle.  The 1^st Defendant was the agent and/or authorized person of the 2^nd Defendant in driving the Insured Vehicle.

5.  At the material times, the 1^st Defendant was driving the Insured Vehicle which collided with a taxi.  The driver of the said taxi (the “Injured”) sustained personal injuries and property loss.

6.  The 1^st Defendant was charged and convicted on 17 June 2008 of the offences of “driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit” and “dangerous driving”.

7.  The Plaintiff relies on the “Intoxicating Liquor Exclusion Clause” of the Motor Policy to disclaim liability under the Motor Policy and relies on the “Avoidance of Certain Terms and Right of Recovery” clause (clause 14) of the Motor Policy to claim against the Defendants.

8.  The Injured commenced action on 27 November 2008 against the Defendants in DCPI 2538 of 2008 for personal injuries and property loss (the “PI Action”).

9.  The Plaintiff took charge of the PI Action and settled the Injured’s personal injuries claims at $80,000.00 (the “Payment”).

10.  The Plaintiff also paid $47,000.00 (the “PI Costs”) to the Injured as settlement for his costs in the PI Action.

11.  The Plaintiff incurred own costs in the PI Action in the sum of $38,081.00 (the “PI Own Costs”).

12.  The Plaintiff claims against the Defendants in this Action for the Payment, the PI Costs and the PI Own Costs in the total sum of $165,081.00 together with interest and costs.

13.  The Defendants took no step in this Action.

14.  No notice of intention to defend has been given by any of the Defendants.  Interlocutory Judgment was entered against the Defendants for the Plaintiff’s claims on 22 September 2009 with damages to be assessed.

15.  The Plaintiff issued the Notice of Appointment for Assessment of Damages (the “Assessment Notice”) on 30 November 2009 returnable on 24 December 2009.

16.  The Assessment Notice was sent to the Defendants separately on 1 December 2009 by ordinary post.  The Plaintiff filed Affirmation of Service herein on 3 December 2009.

17.  The Defendants did not attend the hearing on 24 December 2009.  Directions on discovery and exchange of witness statement were given.  Hearing was adjourned to 4 March 2010 for further directions. (the “1^st Order”)

18.  The 1^st Order was sent to the Defendants separately on 5 January 2010 by ordinary post.  The Plaintiff filed Affirmation of Service herein on 2 March 2010.

19.  The Defendants did not attend the adjourned directions hearing on 4 March 2010.  At the said hearing, the hearing date for assessment of damages was set down for 28 April 2010 (the “2^nd Order”).

20.  The 2^nd Order was sent to the Defendants separately on 12 March 2010 by ordinary post.  Affirmation of Service was filed herein on 19 April 2010.

21.  The Plaintiff filed and served its List of Documents and signed witness statement.  Affirmations of Service on service of the aforesaid documents were filed on 26 January 2010 and 19 April 2010 respectively.

22.  The Defendants did not file any document nor take any step in this Action.  The Defendants also failed to attend the assessment of damages hearing on 28 April 2010.

23.  I was satisfied that notices for the hearing for 28 April 2010 had been duly given to the Defendants.  It was the Defendants’ own choice not to attend the assessment of damages hearing.  I decided to proceed with the assessment of damages hearing in the absence of the Defendants.

The Plaintiff’s Claim

24.  The Plaintiff claims the following sums against the Defendants:

(1)              the Payment in the sum of $80,000.00;

(2)              the PI Costs in the sum of $47,000.00; and

(3)              the PI Own Costs in the sum of $38,081.00.

Evidence of the Plaintiff

25.  The Plaintiff called its claims manager, Mr. Chu Chi Kong (“Mr. Chu”), to testify at the assessment hearing.

26.  Mr. Chu adopted his witness statement filed herein on 2 March 2010 as his evidence.

27.  Mr. Chu confirmed that the Motor Policy contained the “Intoxicating Liquor Exclusion Clause” which had the following provisions:

“The company [the Plaintiff] will not be liable under this Policy for any accident, loss, damage or liability if at the time of the accident, loss, damage or liability occurs or arises if [sic] the vehicle was being used by a person insured under the policy or any authorized driver who was under the influence of alcohol over the prescribed limit under the provision of The Road Traffic Ordinance.”

28.  Mr. Chu also confirmed that the Plaintiff claimed recovery against the Defendants pursuant to clause 14 of the Motor Policy which had the following provisions:

“If the Company [the Plaintiff] is obliged by the laws of any country within the Geographical Area or by virtue of any agreement between the Company and The Motor Insurers’ Bureau of Hong Kong to pay an amount for which the Company would not otherwise be liable under this Policy the Insured and any other person on whose account the payment is made shall forthwith repay such amount to the Company.”

29.  The Plaintiff was liable to the Injured’s personal injuries claims under the Motor Vehicle Insurance (Third Party Risks) Ordinance (Cap. 272).

30.  Mr. Chu confirmed that the Plaintiff had paid $80,000.00 to the Injured to settle his personal injuries claims.  Mr. Chu said that the Plaintiff had informed the Defendants of the settlement offer made to the Injured but no response was received from any of the Defendants.

31.  Mr. Chu further confirmed that the Plaintiff had paid $47,000.00 to the Injured to settle his claim for the PI Costs. Mr. Chu said that the Plaintiff had also informed the Defendants of this settlement with the Injured.  Again, no response was received from any of the Defendants.

32.  The Plaintiff also paid $38,081.00 to its solicitors as costs for handling the PI Action.

33.  Miss Soo representing the Plaintiff said that the Injured claimed $277,675.00 in his Statement of Damages filed in the PI Action.

34.  Miss Soo relied on the cases of Chan Tsz Sing v Lo Ching Pong & Another (CACV 176/2004) (unreported) and Singh Jagdeep v VSC Engineering Products Co, Ltd. (DCPI 391/2005) (unreported) in support of her submission that the Injured might recover up to $70,000.00 under the head of Pain, Suffering and Loss of Amenities.

35.  Miss Soo considered that the Injured would recover $9,500.00 as pre-trial loss of earnings and $3,000.00 as special damages for medical expenses, travel expenses and tonic food.

36.  She took the view that the Injured did not suffer loss of earning capacity.

37.  According to her calculations the Injured might recover $82,500.00 for his personal injuries claims.  She submitted that settling the Injured’s personal injuries claims at $80,000.00 was reasonable.

38.  The Injured claimed $77,210.00 as costs for the PI Action.  After negotiation between the parties, it was settled at $47,000.00.  Ms Soo said that the settlement sum was about 60% of the claim amount.  She submitted that the settlement for the PI Costs was also reasonable.

Findings

39.   According to the medical report of Pamela Youde Nethersole Eastern Hospital dated 5 November 2008 disclosed in the PI Action, the Injured sustained “approximately 4cm right elbow laceration, mild abrasions over right elbow, right hand and left knee” in the Incident.

40.  The Injured was granted 19 days sick leave during the period from 21 July 2007 to 8 August 2007.

41.  In the Statement of Damages served in the PI Action, the Injured claimed $277,675.00 plus interest.  This included the Injured’s claim for property loss.

42.  The Injured’s median daily earning prior to the Incident was $500.00 and the Injured had produced receipts showing medical expenses incurred by him.

43.  The Plaintiff’s solicitors had informed the Defendants by letters dated 14 January 2009 of the settlement offer of $80,000.00.  No objection to the offer had been raised by any of the Defendants.  The Defendants also take no step in this Action to dispute the reasonableness of the Payment.

44.  I agree with Miss Soo and find that the Payment in the sum of $80,000.00 is a reasonable settlement for the Injured’s personal injuries claims.  I allow this item of the Plaintiff’s claim.

45.  The Injured claimed $77,210.00 as his costs in the PI Action.  After a few rounds of offer and counter-offer, the Injured accepted $47,000.00 as settlement for his costs in the PI Action.

46.  By letters dated 9 March 2009, the Plaintiff’s solicitors informed the Defendants of the settlement of the Injured’s costs in the PI Action at $47,000.00.

47.  No objection to the settlement had been raised by any of the Defendants.  The Defendants also take no step in this Action to dispute the reasonableness of the PI Costs.

48.  Pleadings had been closed in the PI Action and certain discovery had been done before the case was settled.  In view of the extent of works done by the Injured’s solicitors in the PI Action, I agree that to settle the Injured’s claim for costs at $47,000.00 is reasonable.  I also allow this item of the Plaintiff’s claim.

49.  The Plaintiff incurred $38,081.00 as its own costs in the PI Action.  Particulars of those costs were set out in the Plaintiff’s solicitors’ bill no. 21554 dated 9 March 2009.  I accept that this is a reasonable amount in view of the works done.  I also allow this item of the Plaintiff’s claim.

50.  I assess that the damages payable by the Defendants to the Plaintiff in this Action at $165,081.00 which includes the following items:

(1)              the Payment in the sum of $80,000.00;

(2)              the PI Costs in the sum of $47,000.00; and

(3)              the PI Own Costs in the sum of $38,081.00.

51.  I make an order nisi for the Defendants to pay to the Plaintiff interest on the said sum of $165,081.00 at judgment rate from date of Writ to the date of Judgment and thereafter also at judgment rate until payment in full.

52.  I also make a costs order nisi against the Defendants in favour of the Plaintiff for the assessment of damages proceedings to be taxed if not agreed.

53.  The above orders nisi shall become absolute after 14 days from the date hereof unless any party shall apply to vary them within this 14 days period.