TINFORD TEXTILES LTD v. LI WING CHEONG

DCCJ 3170/2020

[2021] HKDC 956

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3170 OF 2020

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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 2016, where the defendant caused damages to the plaintiff’s vehicle.  The plaintiff instituted the present proceedings against the defendant claiming various losses and damages, including (i) the repair costs of his vehicle, (ii) survey fee, and (iii) policy excess.

2.  On 14 August 2020, in absence of any notice of intention to defend, the plaintiff entered an interlocutory judgment against the defendant 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 Lam Man Chun was filed on 7 December 2020.  The plaintiff also relies on an expert’s statement made by Mr Tang Shir Fu dated 5 November 2020.  At the direction hearing on 4 March 2021, I granted leave to the plaintiff to adduce expert evidence without the need of calling the maker of the same. 

4.  At the hearing, the plaintiff was represented by Mr Leung of Messrs Patrick Wong & Co, solicitors for the plaintiff.  The defendant is not legally represented and appeared in person.

5.  At the conclusion of the hearing, I indicated that a written decision would be handed down on 10 August 2021.  This is my decision.

ANALYSIS OF EVIDENCE

6.  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.

7.  I also accept the expert opinion given by Mr Tang Shir Fu (“Mr Tang”). Mr Tang is a motor surveyor of General Surveyors & Adjusters Limited (“the Adjustor”), the adjustor in this case.  He has over 48 years of experience in specializing on surveying damaged vehicles and assessing repair costs.  He has examined over 60,000 vehicles of varying extent and nature of damages over his long career.  He has also testified before court as an expert witness in motor claims cases for not less 30 times[1]. I am satisfied that he is qualified to give expert opinion in respect of the quantum of the plaintiff’s loss and damage. 

8.  Mr Tang had physically inspected the plaintiff’s vehicle on 15 November 2016 at the site where the vehicle was parked.  He took photographs of the damages, and some of the photographs were incorporated in his survey report.  He then provided quotation setting out the estimated costs for labour and auto parts for repairs[2]. I find that his opinion is both reasonable and plausible.

9.  At the hearing, Mr Leung called Mr Lam Man Chun (“Mr Lam”) as factual witness.  Mr Lam is the director of the plaintiff.  Mr Lam adopted his witness statement as examinations-in-chief.  They also answered some questions raised by me.  On the whole, I find nothing inherently improbable about Mr Lam’s evidence.

THE PLAINTIFF’S CASE

10.  The plaintiff is the registered owner of a private vehicle bearing registration number ML6[3]. The make of the vehicle is Toyota and the model is Alphard 3.5.  The vehicle was manufactured in 2015 with mileage of 24,423[4]. At the material times, the defendant was the driver of a private vehicle bearing registration number SH9813[5].

11.  According to the Statement of Claim, at about 1503 hours on 22 October 2016, the plaintiff’s vehicle was traveling along the 2^nd lane of southbound tube of Cross Harbour Tunnel towards Hong Kong Island.  Upon reaching near Alcove 1, the plaintiff’s vehicle was stopped because of the traffic conditions ahead.  The defendant’s vehicle was travelling immediately behind the plaintiff’s vehicle.  The defendant, the owner and the driver of the defendant’s vehicle, failed to stop in time and rammed into the rear of the plaintiff’s vehicle, which caused a chain collision with the preceding vehicle[6]. The plaintiff said that the accident was caused by the defendant’s negligence[7].

12.  After the collision, a driver of the plaintiff drove the plaintiff’s vehicle to Auto Tech Service Company (“the Garage”) for inspection of damages and quotation of repair costs.  The plaintiff also submitted the insurance claim form to its insurer, Allied World Assurance Co Ltd.  The total repair costs as quoted by the Garage amounted to $212,725 (inclusive of parts and labour)[8].

13.  After receiving the said estimate from the Garage, the plaintiff’s insurer appointed the Adjustor to appraise the estimate of costs.  The repair costs and labour charges were adjusted to $134,474 (inclusive of parts and labour)[9]. It also appears that, according to plaintiff’s insurance policy, there was net policy excess of $11,000 and depreciation of $10,087.  The repair costs were settled by the plaintiff’s insurer at $113,387 (ie, $134,474 - $11,000 - $10,087).

14.  According to the motor survey report prepared by the Adjustor, the plaintiff’s vehicle was heavily damaged.  Its back door was misshaped and the lock thereof was jammed.  A number of the parts of the front and back bumpers, back door, and luggage box and cover were crashed and need to be replaced.  Various parts (including the front hood, bumpers’ reinforcements, and rear floor pan) also needed to be reshaped[10].

DISCUSSION

(1) Repair costs

15.  I accept that the total repair costs for the damages sustained as a result of the accident amounted to $134,474.  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[11]. There is nothing before me that could challenge the reasonableness of the said amount of repair costs.

16.  According to the official receipt[12] issued by the Garage, the plaintiff’s insurer paid the sum of $113,387 on 7 December 2016.

17.  I also find that the defendant should also compensate the plaintiff for the policy excess ($11,000) which he had paid on 25 November 2016.  This payment is supported by an invoice[13] and a receipt[14] issued by the Garage.

18.  In the present case, the plaintiff does not claim any loss of depreciation or betterment.

19.  Accordingly, I would award the repair costs in full at the sum of $124,387 (ie, $113,387 + $11,000).

(2) Survey fee

20.  The plaintiff also incurred survey fee in the sum of $700 for the preparation of the motor survey report.  This expense was supported by a monthly statement issued by the Adjustor to the plaintiff’s insurer[15]. I find the amount reasonable and would allow it in full.

(3) Total amount of award

21.  Accordingly, I hold that the plaintiff is entitled to recover from the defendant the repair costs and the survey fee.  The total amount of damages which the defendant is liable to pay the plaintiff is therefore $125,087 (ie, $124,387 + $700).  A final judgment is to be entered in favour of the plaintiff in this amount.

INTERESTS

22.  While Mr Leung did not in his skeleton submission make any submission in respect of interests, he agreed 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 Writ of Summons until the date of this assessment.  I would order accordingly.

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

COSTS

24.  Costs should follow the event.  As the plaintiff obtains a meaningful sum of damages, it should be regarded as the successful party in this assessment of damages.  The defendant should therefore pay its costs of this assessment.

25.  According to its statement of costs, the costs incurred by the plaintiff amounted to $118,670.  During the hearing, I allowed a brief recess so to allow the parties to discuss the issue of costs. When the hearing was resumed, I was told that the parties were able to reach an agreement at the figure of $75,000.

26.  Costs are at the discretion of the Court. While the discretion must be exercised judicially, the exercise of it is not fettered by the contractual arrangement of the parties[16]. Although the parties herein were able to reach an agreement in respect of costs, I decide to revisit the issue nonetheless. I do so largely because the defendant is not legally represented and did not have the benefit of legal advice when he discussed the issue with the plaintiff’s solicitors.

27.  In scrutinizing the plaintiff’s statement of costs, I find that the amount claimed by the plaintiff was grossly excessive. It is observed that this is a straightforward traffic accident case, perhaps the simplest of its kind. No issue has been disputed by the defendant. The main contents of two statements were only 4 pages in total. The entire hearing bundle was just 75 pages, including documents that were duplicated. In my view, the time spent on the attendance of client (item C1) appears to be excessive. So does the time that was spent on the preparation of documents (item D1) and the perusal of documents (item D2). The actual time for the directions hearing on 4 March 2021 was no more than 15 minutes. While one day was reserved for the substantive hearing, it only took a little more than an hour.

28.  Accordingly, on a broad-brush approach, I fix the plaintiff’s costs of this action at $45,000.

DISPOSITION

29.  For the reasons as aforesaid, I enter a final judgment in the plaintiff’s favour against the defendant in the sum of $125,087, together with interests thereon at the HSBC best lending rate from 24 June 2020 to the date of this assessment and thereafter at the judgment rate until full payment.

30.  I also order that the defendant shall pay the plaintiff’s costs of this action, including this assessment of damages, summarily assessed at $45,000, payable forthwith.

31.  For the benefit of the defendant, the assessment hearing is conducted in punti.  As indicated at the hearing, if requested, court interpreter’s assistance may be arranged for the defendant in receiving this decision of assessment.