MAXSON TRANSPORTATION LTD v. POON WAI HANG

DCCJ5140/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5140 OF 2006

------------------------

------------------------

-------------------------------------------------------

REASONS FOR ASSESSMENT OF DAMAGES

------------------------------------------------------

1.  The Plaintiff was the registered owner of a Public Light Bus bearing registration no.LR3317 (“PLB”). The Defendant was/is the registered owner of a Light Goods Vehicle bearing registration no.KD5629 (“LGV”).

2.  At about 1:05 am on 4^th September 2005, Mr Chan Kin Ming drove the PLB along Ting Kok Road in an easterly direction towards Tai Mei Tuk. At the same time, the Defendant was driving the LGV along the same road in a westerly direction towards Tai Po at high speed. At a right angle curve of the road near lamppost AE0656, the Defendant so negligently drove the LGV that he lost control of the LGV and caused it to swerve to the opposite lane. The front of the LGV rammed into the offside front of the PLB which was just arriving at the same location on the opposite lane.

3.  As a result of the accident, the Defendant was charged with and convicted of the offence of “Dangerous Driving” and was fined HK$3,000.00 with disqualification of his driving licence for 12 months.

4.  The Plaintiff commenced the present proceedings on 16^th October 2006. No notice of intention to defend was given by the Defendant and on 21^st November 2006 interlocutory judgment was entered in favour of the Plaintiff against the Defendant with damages to be assessed.

5.  At the hearing of the assessment of damages, the Defendant was absent. However, the Plaintiff’s solicitors have served the Order of Deputy District Judge Wahab dated 20^th December 2006 on the Defendant. The said Order sets out the date, time and venue for the hearing of the assessment of damages.

6.  The Plaintiff’s solicitors have also served the Plaintiff’s List of Documents, the witness statement of Mr Lam King Dok (“Mr Lam”), the Plaintiff’s transportation manager, and the survey report of Lau King Motor Survey Company (“Surveyor”) dated 17^th September 2005 (“Report”) on the Defendant.

7.  I saw no reason why the hearing for assessment of damages should not proceed.

8.  At the hearing, Ms Chan, solicitor for the Plaintiff, applied for leave to adduce motor expert evidence from 1 motor survey expert and for leave to adduce the Report without the need to call the maker to give evidence at the hearing of the assessment of damages pursuant to Order 38 rule 41 of the Rules of the District Court. The Plaintiff’s solicitors have served the Report and a hearsay notice for the same on the Defendant. Ms Chan informed me there was no response from the Defendant to the hearsay notice.

9.  Since (a) the Defendant took no interest in these proceedings since inception, (b) the Plaintiff had served the Report and the relevant hearsay notice on the Defendant, (c) the Defendant did not respond to the hearsay notice and (d) did not appear at the hearing of the assessment of damages or file/serve any written objection to the Report, I consider it appropriate to and did grant the orders sought by Ms Chan.

10.  Mr Lam was called to give evidence and with leave of the court adopted the contents of his witness statement as his evidence-in-chief. Mr Lau Ming (“Mr Lau”) was the motor surveyor of the Surveyor who examined the PLB on 9^th September 2005 and prepared/signed the Report. As explained above, the Report was adduced as evidence at the trial without calling Mr Lau.

11.  Mr Lam said the PLB was seriously damaged as a result of the accident. This is also evidenced by the MVE Accident Report dated 6^th September 2005 and the photographs of the PLB annexed to the Report.

12.  In the Report, Mr Lau agreed with the repairer’s estimate dated 8^th September 2005 that set out the parts of the PLB that required replacement/repair. These parts coincided with the parts of the PLB damaged by the accident as found by Mr Lau. He also agreed with the repairer’s estimated repair cost of the PLB in the sum of HK$360,132.00. Crown Motors Limited by a latter dated 16^th September 2005 confirmed that the market value of the PLB as at September 2005 was approximately HK$300,000.00 to HK$320,000.00. Thus the estimated repair cost was higher than the PLB’s market value. In short, the PLB was beyond economic repair.

13.  Mr Lau therefore recommended that the PLB be disposed of on a total loss basis with scrap/salvage value of the damaged PLB estimated at about HK$30,000.00. The Plaintiff accepted the recommendation and declined to repair the PLB. The Plaintiff claimed for loss of the PLB being the average market value of HK$310,000.00 ((HK$300,000.00 + HK$320,000.00) ÷ 2) less HK$30,000.00 (scrap value) = HK$280,000.00. I am satisfied that the Defendant is liable for such loss.

14.  Mr Lam went on to say that the Plaintiff had since purchased a substitute Public Light Bus. But since the PLB was a fixed route Public Light Bus, the Plaintiff had to apply to the Transport Department to substitute another Public Light Bus for the PLB. The Transport Department granted such permission on 20^th September 2005 (see letter from the Transport Department to the Plaintiff of the same date). The Plaintiff then had to wait for issuance of the vehicle licence. It was only on 27^th September 2005 that the PLB was substituted by another Public Light Bus bearing registration no.KZ7459 to operate the scheduled route. In the circumstances, the Plaintiff suffered a loss of operating income for 23 days from 4^th to 26^th September 2005 due to the accident.

15.  According to the Plaintiff’s records, the PLB and the substitute Public Light Bus plied the “20S” scheduled route for 7 days in September 2005 earning a total income of HK$15,640.00. On 4^th September 2005, the income received before the accident was HK$73.70. In the circumstances, the average income during September 2005 was (HK$15,640.00 – HK$73.70) ÷ 7 days = HK$2,223.86. The Plaintiff therefore claimed for loss of operating income of HK$2,223.86 x 23 days = HK$51,075.08. I am satisfied that the Defendant is liable to the Plaintiff for such loss.

16.  The Surveyor’s survey fee of HK$750.00 is evidenced by the Surveyor’s receipt dated 17^th September 2005. I am satisfied that the Defendant is liable to the Plaintiff for such expense.

17.  However, I am not satisfied that the Plaintiff’s damages should include the charges for the vehicle registration search of the LGV in the sum of HK$45.00. Mr Lam was unable to say whether the Plaintiff conducted the vehicle search or not. In my view, the search was obtained for the purpose of the present claim against the Defendant and the fee should be part of the Plaintiff’s costs to be taxed and not damages.

18.  In the circumstances, I have at the hearing granted judgment for the Plaintiff against the Defendant for the sum of HK$331,825.08 with breakdown as follows :

(a)   loss of the PLB in the sum of HK$280,000.00;

(b)   survey fee of HK$750.00;

(c)   income loss of HK$51,075.08.

19.  I have also awarded interest at half judgment rate (5.467% pa) on the sum of HK$331,825.08 from the date of the writ (16^th October 2006) to the date of the interlocutory judgment (21^st November 2006) and thereafter at judgment rate until payment.

20.  There is no reason why costs should not follow event. I therefore also ordered that the Defendant do pay the Plaintiff costs of the assessment of damages (including all costs reserved) to be taxed if not agreed.