WONG PO TO and Another v. L.S.M. CONSTRUCTION & ENGINEERING LTD. and Another

A10397 of 1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Assessment of Damages

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1. The plaintiffs obtained interlocutory judgment against the 1st and 2nd defendants on 16th November, 1994, and 1st December, 1994, respectively, with damages to be assessed. The defendants were in person until 17th January, 1995, when a notice to act for the second defendant was filed by Messrs. K. Y. Woo and Company. On 15th May, 1995, a notice to act in person was filed by the second defendant.

2. On 24th January, 1995, the plaintiffs obtained an order for assessment of damages pursuant to the two judgments, together with directions under O.37 r.1. On 6th February, 1995, the plaintiffs' list of documents was filed and served. On 3rd March 1995, a notice of appointment of assessment of damages was obtained, which was served on the first defendant and on the second defendant's solicitor by post on the same day. The defendants did not appear at the assessment of damages.

3. The claim arises out of the loss and damage as the result of the negligence of the defendants when the employees and/or servants and/or agents of the second defendant carried out work at Flat B, 6th Floor, Sang Cheong Building, 427-437 Queen's Road West, Hong Kong, in particular the demolition and removal of an eighteen-foot long metal cage, on 7th August, 1993. An oxyacetylene welding cylinder used in dismantling the metal cage burst, and set fire to the furniture in the bedroom of the premises which then spread to other areas of the premises. The second plaintiff sustained injury to her hands in the course of extinguishing the fire. The first defendant was at all material times the principal contractor of the second defendant.

4. The plaintiff called four witnesses:-

1. Wong po-cheung, the first plaintiff's younger brother;

2. Wong po-to, the first plaintiff;

3. Madam Wong lee sau-chu, the second plaintiff, and the mother of the first plaintiff;

4. Madam Hui mei-fong, the first plaintiff's wife.

5. The damages claimed can conveniently be classified into ten headings as follows:-

1.	Cost of repair to the premises	$125,788.00
2.	Medical expenses	$1,878.50
3.	Cost of alternative accommodation	$26,966.50
4.	Replacement of lost and damaged electrical appliances	$19,013.00
5.	Loss of jewellery	$39,176.00
6.	Replacement of lost and damaged furniture	$14,624.80
7.	Laundry expenses	$1,627.80
8.	Replacement of lost and damaged clothing	$29,260.10
9.	Replacement of other items of lost and damaged personal belongings	$10,287.00
10.	Replacement of camera and development of film	$1,251.96
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	Total:	$269,873.66
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6. Evidence was called on these heads of claim as follows:-

1. Cost of repair to the premises.

An invoice for repair work in the sum of $125,788.00, from Hing Fat Design and Decoration Company, was produced, together with four receipts dated 3/9/93 for $30,000.00, 8/l0/93 for $35,000.00, 16/l0/93 for $20,000.00 and 8/11/93 for $40,788.00, which were together marked exhibit 7.

PW 2 gave evidence on the repair work, and produced the receipts referred to above. I accept the evidence of PW 2 as to the repairs carried out at the premises. I am satisfied that the amount claimed for repair to the premises is fair and reasonable, and I accordingly award damages in the sum of $125,788.00, under this head.

2. Medical expenses incurred by the second plaintiff.

Evidence was given by the second plaintiff as to her attendances for medical care, and she produced receipts for the following:-

(i)	Bandages	$30.50
(ii)	Medical fees for consulting Dr. Y.P. Tam on four occasions	$l,050.00
(iii)	Medical fees for consulting a Chinese herbalist, Mr. Chung shiu-sing, on one occasion	$l00.00
(iv)	Medical fees for consulting a Chinese herbalist, Mr. Chik king-wing, on three occasions	$298.00
(v)	Medical fees for consulting Dr. Buddy T.M.Wong, on two occasions	$400.00

I accept the evidence of the second plaintiff as to the cost of seeking medical assistance for the burns she sustained, and I award the sum of $1,878.50 under this head.

3. Cost of alternative accommodation incurred by Wong po-cheung, the younger brother of the first plaintiff, and the son of the second plaintiff.

The total claim is for $26,966.50, which covers the period of just over two months after the fire. Mr. Wong gave evidence of residing at the damaged premises with his family prior to the fire, and of moving together with his mother, the first plaintiff, into the China Merchants Hotel, Western district, and then of moving to the Newton Hotel on the Kowloon side, to be closer to his elder brother, where they stayed until 2nd September, 1993. Later, to minimise the cost, he moved together with his mother to two different hostels, one owned by Tin Lung Travel Trading Company and one by Pak Tak Travel Trading Company. He produced receipts as follows, to cover the period 7/8/93 to 18/10/93:-

(i)	China Merchants Hotel - payment made 9/8/93 in the sum of $l,763.00.
(ii)	Newton Hotel -
	(a) first payment made on 16/8/93 in the sum of $5,286.50;
	(b) second payment made on 25/8/93 in the sum of $6,007.00;
	(c) third payment made on 28/8/93 in the sum of $2,990.00.
(iii)	Hostel accommodation -
	(a) first payment made on 28/8/93 in the sum of $6,300.00;
	(b) second payment made on 18/10/93 in the sum of $4,620.00.

I accept the evidence given by Mr. Wong po-cheung on the expenditure on accommodation for himself and his mother for a period of approximately two months after the fire, while repairs were carried out at the premises. I am satisfied that the amount claimed for this expenditure is reasonable and proper, and I make an award in the sum of $26,966.50 under this head.

4. Replacement of lost and damaged electrical appliances.

The four witnesses each gave evidence and produced receipts in support of electrical appliances lost and damaged or replaced, totaling $19,013.00. Included in this figure are four lamps, a second hand hi-fi, a video recorder, a telephone, a fan, a hair dryer, an electric iron, a radio, an alarm clock, a typewriter, two IQ cards, a dehumidifier, a foot roller, a cooktop and some parts for an air conditioner. I accept the evidence of the four witnesses with regard to these claims, which are items normally found in domestic premises, and I am satisfied that the claims are reasonable and proper. I therefore make an award of $19,013.00 under this head.

5. Loss of jewellery

PW 3, Madam Wong Lee sau-chu, gave evidence of having lost the following jewellery:-

(i)	Diamond ring	$3,000.00
(ii)	Gold patterned ring	$500.00
(iii)	Necklace, floral earrings, and a bracelet	$4,670.00
(iv)	Gold ring	$2,150.00
(v)	Gold pendant	$870.00
(vi)	Wrist chain	$661.00
(vii)	Gold ring	$360.00
(viii)	Diamond necklace	$3,680.00
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	Total:	$15,891.00
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PW 4, Madam Hoi mei-fong gave evidence of having lost the following jewellery:-

(i)	Gold ring	$355.00
(ii)	Gold neck chain	$1,437.00
(iii)	Gold bangle	$2,324.00
(iv)	Gold bangle	$l,697.00
(v)	Ring	$840.00
(vi)	4 unset diamonds	$6,008.00
(vii)	Gold earrings	$927.00
(viii)	Bangle	$4,116.00
(ix)	Gold Bracelet	$1,662.00
(x)	Necklace	$3,919.00
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	Total:	$23,285.00
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Madam Wong gave evidence that the items of jewellery were kept in a drawer in the bedroom. The premises were flooded, and they never recovered any of the jewellery after the fire. Madam Hui gave evidence that many of the items of jewellery were wedding gifts.

Receipts with descriptions of the jewellery were produced in support of the loss of the items claimed. I accept the evidence of the witnesses as to the loss of jewellery. I am satisfied that Madam Wong and Madam Hui owned the items of jewellery, and that they were lost in the fire, and I am satisfied that the claim is reasonable and proper. I therefore award the sum of $39,176.00 for the loss of jewellery.

6. Replacement of lost and damaged furniture

The sum of $14,624.80 is claimed under this head, for the following items:-

(i)	Replacement of a cupboard, a small sofa, a table, and 4 chairs and a wardrobe	$12,696.80
(ii)	Curtains	$l,750.00
(iii)	Shelf	$178.00

PW 2, Mr. Wong po-to gave evidence as to the replacement items, while PW 4, Madam Hoi, gave evidence as to the curtains and shelf. I accept their evidence on these items. I am satisfied that the claim is reasonable and proper, and I accordingly award the sum of $14,624.80 under this head.

7. Laundry Expenses

The claim under this head is for $1,627.80. Evidence was given by PW 1 and PW 2 as to the items of clothing and bedding that required laundering. I accept their evidence. I am satisfied that the amount claimed is reasonable and proper, and I accordingly award the sum of $1,627.80 under this head.

8. Replacement of lost and damaged clothing

The claim made under this head is for $29,260.10. Evidence was given by the four witnesses relating to items of the clothing that had been lost. Sales slips and receipts were produced in support of the claims. Included was a claim for replacement clothes for Wong po-shing, a younger brother of the family, who is studying in America, but who was staying at the premises at the time of the fire. His only suit was damaged in the fire, and a replacement was purchased for him at the cost of $2,000.00. Some items of bedding were claimed under this head. I accept the evidence of the four witnesses relating to the items of clothing and bedding, and I am satisfied that the claims are reasonable and proper. I make an award of $29,260.10 under this head.

9. Replacement of other items of lost and damaged personal belongings

The sum claimed under this head is $10,287.00. It includes items such as a digital diary, CDs, a wedding photograph, a Game Boy video game together with cassettes, some books, watch repairs, some stationery and a pen, a set of contact lens, some kitchen utensils and a bed. PW 2, 3 and 4 gave evidence as to the loss and replacement of these items, and produced receipts.

I accept that these items were lost in the fire and am satisfied that the claims under this head are reasonable and proper. I make an award of $10,287.00 under this head.

10. Replacement of camera and development of film

Under this head the sum of $1,251.96 is claimed. This relates to the purchase of a replacement camera and the development of film showing the condition of the premises after the fire. PW 2 gave evidence of the loss of the family camera, of purchasing a new camera and of taking and arranging for the development of the photographs of the premises after the fire.

I am satisfied that the expenditure of this sum was entirely necessary and proper, and I make an award in the sum of $1,251.96 as claimed under this head.

SUMMARY

7. In summary, I make an award in favour of the plaintiffs in the total sum of $269,873.66 for the loss and damage as a result of the fire at the premises, as summarised at page 2, together with interest at the judgment rate from the date of Writ until payment.

8. I make an order that the costs of the assessment be to the plaintiffs on a party and party basis with certificate for counsel to be taxed if not agreed.

9. This assessment is handed down under the provisions of O.42 r.5B.