CHEUNG KUN HING v. TSE LAI YIN

DCCJ 2075/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2075 OF 2012

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JUDGMENT

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Background

1. This is a hearing of assessment of damages for negligent driving.

2. The Writ of Summons endorsed with the Statement of Claim was issued on 19 June 2012.  Interlocutory judgment was entered against the defendant on 3 October 2012 in default of notice of intention to defend with damages to be assessed.

3. On 16 April 2013, the action was set down for assessment of damages.  The hearing before me is for this purpose.

The plaintiff’s case

4. The plaintiff testified in court. He confirmed and adopted his witness statement filed on 28 November 2012.

5. According to the plaintiff’s evidence, he is the owner of a private car with registration no. FP192 (“the Plaintiff’s Car”).  The Plaintiff’s Car was involved in an accident on 22 June 2008 with another private car with registration no. HU3884 (“the Defendant Car”).  At the time of the accident, the Plaintiff’s Car was driven by the plaintiff’s son Mr Cheung Kwok Wing, Anthony and the Defendant’s Car was driven by the defendant.  The plaintiff’s son was an authorized driver of the plaintiff.  The accident took place near Tseung Kwan O Road towards Lei Yue Mun Road in Kwun Tong. 

6. After the accident, the defendant pleaded guilty to the charge of careless driving and was convicted at Kowloon City Magistracy on 18 October 2008.

7. In this case, the plaintiff is claiming a sum of HK$101,521.08 which consists of repair costs of the Plaintiff’s Car in the sum of HK$100,421.80 and costs of surveyor’s report in the sum of HK$1,100.00.

The plaintiff’s surveyor report

8. The plaintiff relies on the surveyor report dated 18 July 2008 and compiled by Lau Ming Motor Survey Co in support of his claim for repair costs.  According to the order of Master K K Pang on 26 April 2013, the said surveyor report can be adduced as evidence without calling the maker thereof.

9. According to the surveyor report, the parts that were damaged include the followings:-

“Front bonnet, front bonnet hinge 2 pcs, front bumper cover, front bumper bracket 2 pcs, n/s front bumper side stay, front bumper inner beam, front bumper both dampers, radiator support, front bonnet lock assy., front bonnet lock pillar, back door, back door lock assy., back door electric lock assy., back door outside handle, back door surround moulding, rear end panel, rear floor panel, rear both chassis frames, rear bumper cover, rear bumper bracket 2 pcs, rear bumper towing lid, o/s rear fender mud-guard, license plate set, rear exhaust muffler and other accessories parts were serious dented and distorted. Moreover, o/s headlamp, n/s front bumper fog lamp and o/s rear lamp were broken.”

10. The labour costs were assessed to be HK$25,000 while the costs of the parts were assessed to be HK$75,421.80 giving a total of HK$100,421.80.  A deduction of 20% on the costs of the parts was suggested to reflect the element of betterment ie HK$75,421.80 x 20%  = HK$15,084.40

The plaintiff’s submissions

11. The plaintiff’s solicitor Mr Chiu submits that when assessing the amount of damages suffered by the plaintiff, no deduction should be made for the element of betterment.  He relies on the Harbour Front Investments Limited v Lock Kwok Leung & Others, HCSA 68/2002 and Wong Ngai Shing Preston v Yiu Kwong Yung, DCPI1115 of 2007 as support for his submissions.

12. In Harbour Front Investments Limited v Lock Kwok Leung & Others, Deputy High Court Judge A Cheung said this:-

“Finally, it is argued that the Adjudicator failed to adjust the quantum of damages claimed by the claimant on account of betterment. This is unarguable. McGregor on Damages (16^th ed.) paras 17 and 1328 make it very clear that in a claim of the present type, the cost of repair (as opposed to the cost of a total replacement see Fourth Supplement para 17) of a damaged vehicle need not be discounted to take into account the inevitable betterment or improvement to the vehicle’s condition after the repair. The principle has been followed in a District Court decision of mine: Wong Ping Mui v Mak Hung On DCCJ 2874/2001 (12 October 2001). The 3^rd defendant has not been able to refer me to any authority to the contrary.”

13. In Wong Ngai Shing Preston v Yiu Kwong Yung, His Honour Judge Lok had this to say:-

“In the surveyor’s report, the expert states that there should be a 20% discount on the repair costs to reflect the element of betterment. However, since there was inevitable betterment or improvement to the vehicle’s condition after repair, the plaintiff’s counsel, Miss Phyllis To, submits that the plaintiff’s claim in this regard should not be discounted by reason of betterment. In this regard, she relies on 2 decisions of A Cheung J when he was sitting as a Deputy High Court Judge in the case of Harbour Front Investments Limited v Lock Kwok Leung & Others, unreported, HCSA No. 68 of 2002 (decision on 26 February 2003) and as a District Court Judge in the case of Wong Ping Mui v Mak Hung On, unreported, DCCJ No. 2874 of 2001 (decision on 12 October 2001). As the repair was necessitated by the negligence of the defendant and there was bound to be betterment to the vehicle after the repair, I am prepared to follow these 2 decisions and award the whole sum of $56,723 without any discount of betterment.”

Discussions

14. In light of the above case authorities, I agree that no deduction for the element of betterment should be made in the present case.

15. The Plaintiff’s Car was repaired at the costs of HK$100,421.80.  The plaintiff said his insurer helped him pay HK$79,337.40 and he had to pay HK$21,084.40 by himself.  This is evidenced by 2 receipts respectively dated 10 October 2008 and 31 October 2008 and issued by the repairer Grand Motors.

16. Even though the repair costs were partly borne by the plaintiff’s insurer, I believe the plaintiff should be compensated in full. I find support from Kemp & Kemp: The Quantum of Damages, Volume 1, paragraph 5-097 where a passage by Lord Bridge in Hussain v New Taplow Paper Mills Ltd, [1988] AC 514 was quoted:-

“ … But to the prima facie rule there are two well established exceptions. First, where a plaintiff recovers under an insurance policy for which he has paid the premiums, the insurance moneys are not deductible from damages payable by the tortfeasor .…Secondly, when the plaintiff receives money from the benevolence of third parties prompted by sympathy of his misfortune, as in the case of a beneficiary from a disaster fund, the amount received is again to be disregarded … In both these cases there is in one sense double recovery. If the award of damages adequately compensates the plaintiff, as it should, the additional amounts received from the insurer or from third party benevolence may be regarded as a net gain to the plaintiff resulting from his injury. But in both cases the common sense of the exceptions stares one in the face. It may be summed up in the rhetorical question: ‘Why should the tortfeasor derive any benefit, in the one case, from the premiums which the plaintiff has paid to insure himself against some contingency, however caused, in the other case, from the money provided by the third party with the sole intention of benefitting the injured plaintiff?’”

17. In view of the above analysis, I am of the view that the plaintiff should be compensated in full for the sum of HK$100,421.80 as repairs costs of the Plaintiff’s Car.

18. The costs of surveyor report HK$1,100 are evidenced by 2 receipts respectively dated 18 July 2008 and 4 October 2008 and issued by Lau Ming Motor Survey Co.

19. I accept the plaintiff’s evidence in full and award damages to the plaintiff in the sum of HK$101,521.80 with interest thereon at judgment rate from the date of Writ of Summons until judgment and at the same rate from the date of judgment until payment. 

20. Costs should follow the event.  I order that the defendant do pay the plaintiff the costs of assessment of damages to be taxed if not agreed.