THE KOWLOON MOTOR BUS CO.(1933) LTD v. JET TOURS LTD AND ANOTHER

DCCJ 3158/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3158 OF 2012

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BETWEEN

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ASSESSMENT OF DAMAGES

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1.  This is an assessment of damages arising out of a traffic accident on 28 May 2011 in which a bus bearing registration number JM7120 and owed by the Plaintiff (“Bus”) was damaged by the 2^nd Defendant who was driving a tour bus bearing registration no. JX5219 and owned by the 1^st Defendant.

2.  The 1^st Defendant gave no notice of intention to defend and interlocutory judgment on liability was entered against him on 1 March 2013 with damages to be assessed.   

3.  Service of the Writ on the 2^nd Defendant was unsuccessful.  On 22 May 2014 and upon the Plaintiff’s undertaking through their legal representative that they would not pursue this claim against the 2^nd Defendant without leave of the Court, Mr. Registrar R. Lai set down this matter for assessment of damages, which now comes before me.

4.  The 1^st Defendant was absent at the assessment hearing.  Being satisfied that due notice of the hearing had been given by the Plaintiff’s Solicitors to the 1^st Defendant, I proceeded with assessment in the 1^st Defendant’s absence.

5.  The Plaintiff’s claim for damages comprises 3 items, namely, (i) repair costs at $81,579.09; (ii) damages for loss of use at $14,261; and (iii) motor survey fee at $660.

Repair Costs

6.  The Plaintiff called as factual witnesses Mr. Ng Kuen Yiu, Miss Hau Yat Yee and Mr. Hui Lap Kai and adduced in evidence a motor survey report prepared by Mr. Lee Kai Hung Raymond of Roger Houghton Motor Surveys Limited dated 13 June 2011.

7.  The repair work on the Bus was carried out by the Plaintiff at their workshop in Shatin Depot.  Mr. Ng, Senior Manager, Maintenance Administration of Shatin Depot of the Plaintiff gave evidence by reference to an internal vehicle repair report dated 11 June 2011 (“Vehicle Repair Report”) and confirmed that the spare parts mentioned in that report were sourced directly from the Plaintiff’s own stock and the cost thereof accords with the records of the Plaintiff’s store department. 

8.  According to the Vehicle Repair Report, the Maintenance Administration Department of the Plaintiff assessed the cost of labour and materials at a total sum of $105,626.29.  The same was adjusted downward by the Motor Survey Report to $81,579.09.

9.  I have no reason to question the assessment of the motor surveyor and award to the Plaintiff repair costs at $81,579.09.

Damages for Loss of Use

10.  The Plaintiff as a franchised bus service provider has to keep standby buses in a state of readiness.  Miss Hau, Senior Manager of the Plaintiff’s Costing Department, confirmed that while the Bus was under repair, it was replaced by one of the standby buses in order to maintain the gazetted number of buses for the bus route in question.  In the circumstances, while the Plaintiff suffered no loss of income as a result of the loss of use of the Bus, the Plaintiff claims compensation from the 1^st Defendant in terms of the costs of the standby facility.  The Plaintiff is entitled so to do.  See The Kowloon Motor Bus Co. (1933) Ltd. v A.G. [1984] HKLR 404.

11.  The damages the Plaintiff is claiming under this head is calculated by taking the average daily costs of keeping available a replacement bus of a similar type to the Bus multiplied by the number of days when the Bus was under repair. 

12.  This is the approach adopted by Geoffrey Lane J (as Lord Lane then was) in Birmingham Corporation v Sowsberry [1970] RTR 84, which was endorsed by Hunter J in The Kowloon Motor Bus Co. (1933) Ltd. v A.G., supra and followed by Deputy District Judge J Yau (as he then was) in The Kowloon Motor Bus Co. (1933) Ltd. v K.K. Cargo Systems (HK) Limited and Anor (DCCJ 7794/2001), unreported, 2 August 2002.  For the present purpose, I shall adopt the same approach.

13.  Mr. Ng confirmed that the repair carried out at the Shatin Depot completed on 9 June 2011 so that the off-road period of the Bus was 13 days.  He testified that the repair work involved a total of four steps to be carried out by workers of different disciplines, hence the time taken.  Based on his experience as a senior manager of the Plaintiff’s Service Department, he considered that the time taken for the repair work was no more than necessary.  While Mr. Ng is not giving expert evidence insofar as the reasonableness of the time taken for the repair work is concerned, I have no reason to doubt his evidence given on the basis of his own experience as someone responsible for supervising the repair of damaged buses.  Nor is there evidence to suggest the repair period herein is unreasonably lengthy.  I shall therefore adopt 13 days as the multiplier.

14.  As to the multiplicand, according to Miss Hau, whose evidence is echoed by that of Mr. Hui, Manager of the Plaintiff’s Insurance Department, the average cost of keeping a replacement bus of a similar type came to $1,097 (comprising depreciation allowance at $430, insurance cost at $75 and cost of compulsory overhaul at $592).  I accept their evidence and adopt the same as the multiplicand. 

15.  Damages for loss of use are therefore assessed at $14,261 ($1,097 x 13 days).

16.  I further allow the survey fee in full.   

17.  The Plaintiff’s damages therefore come to $96,500.09 ($81,579.09 + $14,261 + $660) and I adjudge the same to be payable by the 1^st Defendant.  The Plaintiff claims and I award interest on that sum at half judgment rate from the date of accident until today and thereafter at judgment rate until payment.

18.  The 1^st Defendant do further pay the Plaintiff costs of these proceedings including the costs of assessment of damages, to be taxed if not agreed.