WONG NGAN v. WONG CHI MAN

DCCJ 3928/2022

[2024] HKDC 1119

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3928 OF 2022

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BETWEEN

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is the hearing for assessment of damages of the Plaintiff’s claim for loss and damage suffered from a traffic accident at or around 12:41 am on 7 July 2019 at near Lamppost U8662, Sai Ching Street, Yuen Long, New Territories (the “Accident”).

2.  Interlocutory Judgment was entered against the 1^st Defendant on 30 December 2022. On 5.7.2023, the Plaintiff has wholly discontinued the claim against the 2^nd Defendant.

3.  The 1^st Defendant was absent at the hearing on 5 July 2024. Having read the affirmation of service filed on 28 June 2024, I was satisfied that notice of assessment hearing had been duly given to the 1^st Defendant prior to the hearing. It was the 1^st Defendant’s election not to attend the assessment hearing. I proceeded with the assessment of damages in the absence of him.

The Plaintiff’s case

4.  The Plaintiff is the registered owner of a private car with registration number PT3824 (“Vehicle”). In the Accident, the Vehicle was hit and damaged by a light goods vehicle bearing registration number SU3033 driven by the 1^st Defendant. The Plaintiff’s case is that the Accident was caused by the 1^st Defendant’s negligence and breach of statutory duty and duty of care at the material times.

5.  The Plaintiff now claims a total sum of HK$300,995, the breakdown of which is as follows: (a) repair costs of the Vehicle at HK$287,500 paid by the insurer AXA on the Plaintiff’s behalf (excluding policy excess), (b) policy excess at HK$12,500 paid by the Plaintiff, (c) motor survey fee at HK$950, and (d) search fee at HK$45.

The Evidence

6.  In the present hearing, the Plaintiff called one witness: Ms Liu, AXA’s Senior Claims Services Specialist. Pursuant to the Order of Madam Registrar M Soong on 26 September 2023, leave was granted to the Plaintiff to adduce a motor surveyor report dated 29 July 2019 prepared by Toplis and Harding (Hong Kong) Limited (the “Report”) without calling the maker. On the question of quantum, the Plaintiff adduced the Report for the expert opinion therein.

7.  The Plaintiff’s testimony was not subject to any challenge from the 1^st Defendant who had adduced no documentary evidence and witness evidence for the purpose of assessment of damages and was absent during the hearing. I accept Ms Liu’s evidence and the expert opinion set out in the Report.

Repair Costs

8.  The learned editors of McGregor on Damages, 21^st ed, at paragraph 37-004 observe:

“The cost of repair is, however, appropriate only if in the circumstances it is reasonable for the claimant to effect the repair; it might be cheaper to buy a replacement on the market and sell the damaged item for what it will fetch or the claimant might have intended to sell the damaged item and the reduction in market price from the damage is less than the cost of repair. The cost of repair is expected to reflect the diminution in the value of the ship, or other chattel, so that, if it can be shown that the diminution in value is below, possibly well below, the cost of repair, then it may be inappropriate to award the cost of repair.”

9.  The Plaintiff at first obtained a written quotation from a garage called Zung Fu Company Limited (“garage”) which gave an estimation of HK$389,464.13. This estimation was adjusted downward to HK$300,000 by the Report.

10.  The Report opines that the pre-accident market value of the Vehicle is estimated at HK$380,000 to HK$390,000; and the scrap value is approximately HK$50,000 to HK$60,000. It is more economical to repair the Vehicle than to treat it as total loss. The necessary replacement and repairs are also set out in the Report, in view of the impact damage caused by the collision.

11.  There is no evidence before the Court that the repair costs greatly exceeds the pre-accident market value of the Vehicle. The contents of the Report are logical and reasonable, supported with coloured photographs and relevant repair estimate. I will attach full weight to the observations therein. There is no issue of depreciation and/or betterment in the present case. I find the sum HK$287,500 (exclusive of policy excess) which was paid by AXA on behalf of the Plaintiff reasonable and recoverable from the 1^st Defendant.

Policy excess

12.  The Plaintiff further claims a sum of HK$12,500 as policy excess (being loss not covered under the motor comprehensive insurance policy taken out by the Plaintiff with AXA). This consists of compulsory excess of HK$2,500 and voluntary excess of HK$10,000, totaling HK$12,500 paid by the Plaintiff directly for the repair. I see the corresponding documentary support annexed to Ms Liu’s Witness Statement. I find this HK$12,500 reasonable and recoverable from the 1^st Defendant.

Motor survey fee

13.  A survey fee in the sum of HK$950 has also been incurred for the preparation of the Report. This expense is supported by the feenote dated 29 July 2019 also annexed to Ms Liu’s Witness Statement. I find this amount reasonable and allow it in full.

Vehicle registration search fee

14.  A search fee of HK$45 was also claimed for identifying the registered owner of the light goods vehicle, ie the 2^nd Defendant from the records of the Transportation Department. This Court is aware that this fee is not sought under costs and disbursement, leaving no problem of double recovery. I find it reasonable for this sum to have been incurred in order to pursue these proceedings and allow it in full.

Conclusion

15.  The Plaintiff is entitled to recover from the 1^st Defendant the following:

(a)	Repair costs	HK$287,500
(b)	Policy excess	HK$12,500
(c)	Motor survey fee	HK$950
(d)	Vehicle registration search fee	HK$45
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	Total:	HK$300,995
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16.  I order that the 1^st Defendant do pay the sum of HK$300,995 to the Plaintiff with interest thereon at the best lending rate of HSBC plus 1% from 18 October 2019[1] until the date of this judgment and thereafter at judgment rate until full payment.

17.  Costs should follow the event. There is no reason to depart from it in the present case. Having read the Statement of Costs filed on 7 June 2024 submitted by the Plaintiff, I order the 1^st Defendant to pay the Plaintiff’s costs, summarily assessed at HK$60,000.