CHAN HO WAH v. CHAN KIT YU WENDY AND ANOTHER

DCCJ 4704/2019

[2022] HKDC 48

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4704 OF 2019

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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 2018, whereby the 1^st defendant being the driver, and the 2^nd defendant being the person who gave permission the 1^st defendant to drive, caused damages to the plaintiff’s vehicle. The plaintiff instituted the present proceedings against the 1^st and 2^nd defendants claiming various losses and damages, including (i) the repair costs of his vehicle, (ii) motor survey fee and the vehicle registration search fees, and (iii) taxi fees as the loss of use.

2.  In pursuance of the Consent Order filed on 19 September 2019, the plaintiff entered an interlocutory judgment against the 1^st and 2^nd defendants 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 Ms Liu Tak Yee（廖德怡之證人陳述書）was filed on 26 May 2020. The plaintiff also filed his own witness statement（陳浩華之證人陳述書）on 3 September 2020. In pursuance of the Order I made on 11 August 2021, the plaintiff filed an affirmation duly notarized confirming the accuracy of his witness statement. It was also directed that the 1^st and 2^nd defendants might make a request on or before 14 December 2021 for the plaintiff’s personal attendance at this Assessment of Damages hearing, otherwise the plaintiff would be entitled to rely on his witness statement without calling the maker thereof. None of the defendants put forth such a request, and they confirmed at the hearing that it was not their intention to do so. I therefore allow the plaintiff’s witness statement to stand as evidence without hearing his viva voce evidence.

4.  The plaintiff also relies on the Motor Survey Report and two Supplementary Survey Reports all prepared by Mr Sammy W H Lee dated 19 June 2018, 24 July 2018, and 9 August 2018 respectively. At the direction hearing on 15 October 2020, Master Rita So granted leave to the plaintiff to adduce these survey reports without the need of calling the maker of the same.

5.  At the hearing, the plaintiff is represented by Mr Lau of Messrs Leung & Lau, solicitors for the plaintiff. The 1^st and 2^nd defendants are not legally represented and appeared in person.

6.  At the conclusion of the hearing, I indicated that a written decision would be handed down on 18 January 2022. This is my decision.

ANALYSIS OF EVIDENCE

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

8.  As mentioned above, I granted leave to the plaintiff to rely on his affirmation confirming the accuracy of his witness statement as proof of facts in this Assessment of Damages hearing. In his witness statement, the plaintiff said that his vehicle was used by his friend Ms Leung for daily travels. Ms Leung used the vehicle to travel between her residence in Tseung Kwan O and various other places. Because of the accident, she had to resort to taxi during the period when the vehicle was under repair. I accept that this testimony is reasonable and plausible, and I will attach full weight to it.

9.  I also accept the expert opinion given by Mr Sammy W H Lee (“Mr Lee”). Mr Lee is a director of Toplis and Harding (Hong Kong) Ltd (“the Adjuster”), the adjuster in this case. He is a holder of certificate in motor engineering. He joined the Adjuster in 1991 with the main area of specialty in the Motor Department handling motor surveys and investigation works, as well as estimating the loss of damaged vehicles. He has over 29 years of experience and has examined over 65,000 cases of motor insurance claims. He has also testified before court as an expert witness in motor claims cases for 150 cases[1]. I am satisfied that he is qualified to give expert opinion in respect of the quantum of the plaintiff’s loss and damages.

10.  The plaintiff’s vehicle was inspected on 5 June 2018. Photographs of the damages had been taken during the survey, and some of them were attached to the Motor Survey Report dated 19 June 2018. After the completion of the inspection, Mr Lee discussed the total repair costs with Zung Fu Company Ltd (“the Garage”), who agreed with the estimation.

11.  After the said assessment, the Garage informed the Adjuster that they had discovered upon dismantling that some items (namely, wheel control and bumper towing eye cover), which had been deleted by the Adjuster in the first survey, were in fact damaged. Another inspection was carried out. The Adjuster subsequently agreed that the repair costs should be increased accordingly[2].

12.  The Garage later found another item (scratches in the front door) that was deleted by the Adjuster but was in fact damaged. After another inspection, the Adjuster agreed to increase the estimate. In general, I find Mr Lee’s evidence both reasonable and plausible, and I will attach full weight to it.

13.  At the hearing, Mr Lau called Ms Liu to testify before the court. Ms Liu is a senior specialist of AXA General Insurance Hong Kong Limited, the plaintiff’s insurer. She adopted her witness statement as examination-in-chief. She also answered some questions raised by me. The 1^st and 2^nd defendants chose not to cross-examine her. In general, she does not have any personal knowledge regarding the loss suffered by the plaintiff, and all she knew was gleaned from the information provided by the plaintiff to the insurer.

THE PLAINTIFF’S CASE

14.  The plaintiff is the registered owner of a private vehicle bearing registration number AR262[3]. The make of the vehicle is Mercedes Benz and the model is E250. The vehicle was manufactured in 2017. The date of first registration was 28 August 2017[4].

15.  At the material times, the 1^st defendant was the driver of a private vehicle bearing registration number HE206[5]. The accident happened on or about 29 May 2018 at near Lamppost GE2749, Public Carpark, Chun Wang Street, Tseung Kwan O, Kowloon[6].

16.  After the accident, the plaintiff’s vehicle was sent to the Garage for inspection of damages and for quotation of repair costs. The plaintiff also submitted the insurance claim form to his insurer. The total repair costs as quoted by the Garage amounted to $498,969.56 (being $353,106.16 for the parts, $129,968.40 for labours, and $15,895 for other items)[7].

17.  After receiving the said estimate from the Garage, the plaintiff’s insurer appointed the Adjuster to appraise the estimate of repair costs. Originally, the repair costs and labour charges were adjusted to $411,270.28[8]. As mentioned above, after the initial survey, the Garage informed the Adjuster that some items (wheel control arm and front bumper towering eye cover) that were deleted in the first assessment were in fact damaged. The estimate was increased by $6,041.44. Another item of damage (scratch in the front door) was also subsequently discovered. After another inspection, the Adjuster increased the estimation by $11,384. As a result, the total repair costs amounted to $428,695.72, consisting of $140,442.40 for the parts, $288,254.32 for the labours, and less excess of $1[9]. The said repair costs were settled by the plaintiff’s insurer on 11 October 2018[10].

18.  According to the Motor Survey Report[11] prepared by the Adjuster, the plaintiff’s vehicle was heavily damaged. Front body on both sides of the vehicle had sustained impact damages. A number of the parts, including the headlamps, front bumper cover and bracket, PTS sensor, front crossmember, grilles, shield covers, and steering gearbox needed to be replaced. Engine bonnet and bumper cover, as well as the electrical system, needed to be repaired. Affected area also needed to be primed and repainted. As mentioned above, further damages (namely, damages to the wheel control arm, front bumper towing eye cover[12], the front doors on both sides of the vehicles[13]) were also discovered by the Garage after dismantling.

DISCUSSION

(1) Repair costs

19.  I accept that the repair costs for the damages sustained as a result of the accident amounted to a total sum of $428,696.72. 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[14]. As I have explained to the 1^st and 2^nd defendants during the hearing, in absence of any expert evidence to the contrary, there is nothing before me that could challenge the reasonableness of the said amount of repair costs.

20.  According to the official receipt[15] issued by the Garage, the plaintiff’s insurer paid two sums of $417,312.72 and $11,384 respectively on 11 October 2018.

21.  I would allow the repair costs in the sum of $428,696.72.

(2) Survey fee & vehicle search fee

22.  The plaintiff also incurred survey fee in the sum of $900 for the preparation of the survey reports. This expense was supported by the Motor Fee Note issued by the Adjuster on 19 June 2018[16], and the official receipt issued by the Adjuster to the plaintiff’s insurer dated 10 July 2018[17].

23.  The plaintiff also claimed the vehicle search fee in the sum of $45. This expense is also supported by a receipt issued by the Transport Department[18].

24.  I find the amounts of these claims reasonable and would allow them in full.

(3) Loss of use of the vehicle

25.  The plaintiff claims a sum of $3,261.90 under the head of the loss of use of his vehicle. As mentioned above, the plaintiff’s vehicle was used by his friend, Ms Leung, at the material times. No witness statement was however given by Ms Leung. It was stated in the plaintiff’s witness statement that, because of the accident, Ms Leung had to resort to taxi for the period between 31 May 2018 and 9 June 2018. The plaintiff produced a bundle of receipts of taxi fares in support[19].

26.  I accept that the additional travel expenses are in principle recoverable[20]. However, as I explained to Mr Lau during the hearing, in order for a claim for loss of use to succeed, the plaintiff needs to demonstrate that he has suffered net losses and damages taking into account other mitigating factors, such as the savings of the fuel expenditures. For my part, I am not able to accept Mr Lau’s submissions that the fuel expenditures would be negligible given the amount of this claim of additional travel expenses.

27.  In my judgment, mere provision of taxi receipts is not sufficient to support a claim for loss of use. It is necessary for the plaintiff to justify that he has suffered a net loss or damages taking into account the mitigating factors. In the present case, I do not find there is sufficient material before me that I can conclude on the balance of probabilities that the plaintiff had suffered any net loss under this head of loss.

28.  If I understand it correctly, Mr Lau appeared to suggest in his closing submissions 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 there is no evidence before me to support it.

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

(4) Total amount of award

30.  Accordingly, I hold that the plaintiff is entitled to recover from the 1^st and 2^nd defendants the repair costs, the survey fee, and the vehicle search fee. For the reasons I have explained above, I would not allow the claim under the loss of use of the vehicle. I summarize the award for the plaintiff’s losses and damages as follows:-

(1)	Repair costs	$428,696.72
(2)	Surveyor fee & vehicle search fee	$945.00
(3)	Loss of use of the vehicle (taxi fares)	Nil
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Total amount:		$429,641.72
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31.  Accordingly, a final judgment is to be entered in favour of the plaintiff in the sum of $429,641.72.

INTERESTS

32.  In his skeleton submission, Mr Leung asked me to follow the usual practice that the pre-judgment interests would be awarded at 1% above the best lending rate from the date of the accident until the date of this assessment.

33.  I bear in mind the basic principle that interest is awarded to compensate the plaintiff for being kept out of money which ought to have been paid to him[21]. I note that the repair costs (which form the substantial part of the plaintiff’s claim) had been settled on 11 October 2018. I find it more reasonable to order that pre-judgment interests starts to accrue on 11 October 2018, instead of the date of the accident, until the date of this assessment. Mr Lau has no objection to this approach, and I order accordingly.

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

COSTS

35.  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 1^st and 2^nd defendants should therefore jointly and severally pay his costs of this assessment.

36.  According to his statement of costs, the costs incurred by the plaintiff amounted to $146,721. While I accept that substantial time has been spent in the communication with the other side, I still find rooms for reduction in respect of the communication with client (item C1) and the other side (item C2), as well as the preparation and perusal of documents (items D1 & D2). Mr Lau fairly accepted that the time for the attendance of the hearing needed to be adjusted in order to reflect the actual time of 45 minutes, instead of 4 hours as claimed.

37.  On a broad-brush approach, I find that the plaintiff’s costs should not exceed $87,500, being 25-hour works of a fee earner at $3,500 per hour. I would allow the manual works (item B) and disbursement (item E) in full. Accordingly, I fix the plaintiff’s costs at $91,436 (ie $87,500 + $2,440 + $1,496).

DISPOSITION

38.  For the reasons as aforesaid, I enter a final judgment in the plaintiff’s favour against the 1^st and 2^nd defendants in the sum of $429,641.72, together with interests thereon at 1% above the HSBC best lending rate from 11 October 2018 to the date of this assessment and thereafter at the judgment rate until full payment.

39.  I also order that the 1^st and 2^nd defendants shall jointly and severally pay the plaintiff’s costs of this action, including this assessment of damages, summarily assessed at $91,436, payable forthwith.

40.  For the benefit of the 1^st and 2^nd defendants, the assessment hearing was conducted in punti. As indicated at the hearing, if requested, court interpreter’s assistance may be arranged for them in receiving this decision of assessment.