MAN WAI CHUNG GARY v. KONG YUM KIT

DCCJ 3910/2019

[2020] HKDC 923

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3910 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 on 28 October 2017, where the defendant caused damages to the plaintiff’s vehicle.  The plaintiff instituted the present proceedings against the defendant claiming losses and damages including (i) the repair costs of his vehicle, (ii) survey fee, (iii) policy excess, (iv) travelling expenses, and (v) depreciation.

2.  On 21 November 2019, 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.  The plaintiff filed his witness statement on 24 December 2019.  Pursuant to the order made by Registrar Lui on 15 January 2020, leave was granted to the plaintiff to adduce expert evidence without the need of calling the maker of the same.  A witness statement of Raymond Lee Kai Hung was filed on 13 March 2020 accordingly.

4.  In pursuance of the order made by Master Rita So on 19 June 2020, this action was set down for assessment of damages before me today.

5.  At today’s hearing, the plaintiff is represented by Mr Lam Ka Hin (“Mr Lam”) of Messrs Winnie Leung & Co, solicitors for the plaintiff.  The defendant, who is not legally represented, is absent.  Upon perusing the affirmations of service filed on 8 October 2020 and 14 October 2020[1], I am satisfied that the defendant had been duly notified of the present proceedings, as well as this assessment hearing.  I therefore decide to proceed with the hearing in the defendant’s absence.

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 Raymond Lee Kai Hung (“Mr Lee”).  Mr Lee is the director of Roger Houghton Motor Surveys Limited (“the Adjustor”), the adjustor in this case[2]. He has over 40 years of experience as a loss adjustor and has conducted over 140,000 surveys throughout the years[3]. I am satisfied that he is qualified to give expert opinion in respect of the quantum of the plaintiff’s loss and damage.  Furthermore, he inspected the plaintiff’s vehicle with post-accident photographs taken on 7 November 2017 showing the damages sustained in the accident[4]. I find that his opinion is both reasonable and plausible.

8.  At today’s hearing, Mr Lam calls the plaintiff as his only factual witness.  The plaintiff adopts his witness statement as examination-in-chief. He also answers some questions raised by me.  The plaintiff’s evidence is unchallenged.  Most of the heads of damages are supported with documentary evidence.  On the whole, I find nothing inherently improbable about the plaintiff’s evidence, which are set out in his case below.

PLAINTIFF’S CASE

9.  The plaintiff is the owner of a private vehicle bearing registration number PZ7749.  The make of the vehicle is Honda and the model is Stepwgn.  The vehicle was manufactured in 2011[5]. At the material times, the defendant was the owner and driver of a private vehicle bearing registration number NG260[6].

10.  At about 5:25 pm on 28 October 2017, the plaintiff was driving his vehicle along the 1^st left lane of Chung On Street, Tsuen Wan.  When the plaintiff gradually stopped the vehicle near the lamppost W1908 in compliance with the traffic condition, the defendant’s car bumped into the rear of the plaintiff’s vehicle causing damages to it.  The plaintiff said that the accident was caused by the defendant’s negligence[7].

11.  After the collision, the plaintiff’s vehicle was sent to Dah Chong Hong (Motor Service Centre) Ltd (“the Garage”) for an estimate of the costs for repairs[8]. It was quoted that the repair costs and labour charges amounted to $102,790, consisting of $51,900 for parts and $50,890 for labours)[9].

12.  On 7 November 2017, the Adjustor was appointed to appraise the Garage’s estimate of the repair costs and labour charges[10]. The repair costs and labour charges were reduced to $75,639.50, consisting of $41,639.50 for parts and $34,000 for labours.  According to the motor survey report prepared by the Adjustor, the back door panel, back door lock, back door inner trim broad, back panel and rear bumper cover of the plaintiff’s vehicle were seriously distorted.  Back door weather strip, back panel garnish, rear bumper antenna and rear parking sensors were cracked.  Rear cross member, rear compartment floor panel and rear pillars also needed to be repaired[11].

13.  It appears that, according to the plaintiff’s insurance policy, there was net policy excess of $5,000 and depreciation of $12,491.90[12]. Accordingly, the repair costs settled by the plaintiff’s insurance company was $58,147.60 (ie, $75,639.50 - $5,000 - $12,491.90).  The plaintiff confirmed during the hearing that he had only paid $17,000 odd for the repairs.

14.  The Adjustor also charged $700 for the survey fee and $55 for vehicle search fee.

DISCUSSION

(1) Repair costs

15.  I accept that the total repair costs for the damages sustained as a result of the accident amounted to $75,639.50.  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[13].

16.  Mr Lam submitted in his skeleton submissions that the loss of depreciation or betterment is also recoverable[14]. I agree.  I find that the plaintiff should also be compensated for the policy excess he had paid.

17.  Accordingly, I would award the repair costs in full at the sum of $75,639.50.

(2) Survey fee & vehicle search fee

18.  The plaintiff also incurred survey fee in the sum of $700.  This expense was supported by a receipt[15]. I find the amounts reasonable and would allow them in full.

19.  The plaintiff also claimed the vehicle search fee in the sum of $55. Although this expense is also supported by a receipt[16], it is not claimed in the statement of claim.  Mr Lam confirmed during the hearing that the plaintiff would abandon this head of claim.  In such circumstance, there would be no award in respect of this expense.

(3) Travel expenses

20.  According to the statement of claim, the plaintiff claimed a sum of $8,000 as his travel expenses.  While Mr Lam did not address this head explicitly in his skeleton submissions, he referred to a case where the court allowed damages for loss of use of vehicle when the plaintiff resorted to travelling in a taxi[17].

21.  I am prepared to accept that Mr Lam’s submission is correct in principle.  However, in the present case, the plaintiff did not produce any receipts or other documentary proof that he has incurred any travel expenses as a result of the accident.  At today’s hearing, the plaintiff testifies that, when his vehicle was under repair, he had been travelling by taxi to and fro between home and office.  He says one-way fare amounts to about $80.  Based on the plaintiff’s oral evidence, and notwithstanding the absence of any documentary evidence in support, I would award $4,000 under the head of travel expenses.

(4)             Total amount of award

22.  Accordingly, I hold that the plaintiff is entitled to recover from the defendant the repair costs, the survey fee, and the travel expenses.  The total amount of damages which the defendant is liable to pay the plaintiff is therefore $80,339.50 (ie, $75,639.50 + $700 + $4,000).  A final judgment is to be entered in favour of the plaintiff in this amount.

INTERESTS

23.  While Mr Lam did not in his skeleton submission make any submission in respect of interests, he submits at his closing that the plaintiff would claim pre-judgment interests at 1% above the best lending rate from the date of the Writ of Summons until the date of this assessment.  I find that is reasonable and would order accordingly.

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

COSTS

25.  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 defendant should therefore pay his costs of this assessment.

26.  According to his statement of costs, the costs incurred by the plaintiff amounted to $78,850.  I find this amount to be disproportional in view of the size of damages that I am going to award.  The amount may also be regarded as excessive.  On a broad-brush basis, I summarily assess the plaintiff’s costs at $40,000.

DISPOSITION

27.  For the reasons as aforesaid, I enter a final judgment in the plaintiff’s favour against the defendant in the sum of $80,339.50, together with interests thereon at 1% above the HSBC best lending rate from 25 July 2019 to the date of this assessment and thereafter at the judgment rate until full payment.

28.  I also order that the defendant shall pay the plaintiff’s costs of this action, including this assessment of damages, summarily assessed at $40,000, payable forthwith.