CAPITOL ENGINEERING LTD v. CHENG CHAU

DCCJ5306/2016

[2018] HKDC 88

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.5306 OF 2016

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ASSESSMENT OF DAMAGES

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1.  By writ issued on 3 Nov 2016, the plaintiff issued these proceeding to recover damages arising out from a traffic accident on 23 Jun 2014 (the accident) whereby light goods vehicle No.FR1065 (the van) driven by defendant collided with another light goods vehicle No.ME331 (the LGV) driven by Mr TAM Chi-hung (Mr Tam).

2.  On 1 Mar 2017, notice of intention to defend not being filed, interlocutory judgment was entered against the defendant for damages to be assessed.

3.  The hearing of assessment of damages came before me today.

4.  The plaintiff was represented by Mr Lau Ching Ho Jonathan of Messrs. Leung & Lau (Mr Lau).

5.  The defendant was not represented and did not turn up at all. I am satisfied on the affirmations of service before me that the defendant had been properly notified of this assessment hearing, and served with the assessment bundle etc., and I therefore proceeded with the hearing in the absence of the defendant as requested by Mr Lau.

Evidence

6.  By order of Registrar Ho dated 29 Jun 2017, the parties were allowed to file and serve signed witness statements as to quantum by 24 Aug 2017 and, unless otherwise directed, such statements shall stand as evidence-in-chief.

7.  By the same order, leave was given to the parties to adduce expert surveying evidence, limited to one motor surveyor each, with plaintiff nominating Mr Raymond Lee Kai Hung (Mr Lee), and the parties were required to lodge their expert report by 24 Aug 2017, failing which the defaulting party shall be deemed to have elected not to adduce such evidence.

8.  On 22 Aug 2017, the plaintiff filed motor survey report dated 22 Jul 2017 in respect of the LGV prepared by Mr Lee (the report) of Roger Houghton Motor Surveys Limited (the surveyor).

9.  On the same date, the plaintiff filed witness statement as to quantum by Ms Liu Tak Yee廖德怡 (Ms Liu), Senior Claims Executive of AXA General Insurance Hong Kong Limited (AXA), dated 18 Aug 2017.

10.  By the said deadline of 24 Aug 2017, neither did the defendant file any witness statement as to quantum nor lodge any motor survey report.

11.  By another order of Registrar Ho dated 10 Oct 2017, the matter was set down for assessment of damages on 22 Jan 2018. By the said order, unless the court hearing the assessment otherwise directs, the plaintiff was given leave to adduce in evidence the report without calling Mr Lee thereof.

12.  At the hearing before me, Ms Liu was allowed by me to adopt her witness statement as to quantum as her evidence-in-chief and Mr Lee was not required by me, and Mr Lau does not call him, to give oral evidence in the box.

Analysis

13.  I have carefully and fully considered all evidence, submissions and authorities put before me in this hearing.

14.  Absent contrary defence evidence, I accept the documentary evidence put before me by plaintiff, which is consistent with one another   and inherently plausible.

15.  Among others, I accept the expert opinion of Mr Lee and give them full weight. Mr Lee, I am satisfied, is experienced enough to give the said opinion and his assessment of the reasonable costs of repair of the LGV is, I think in all the circumstances, reasonable and plausible, as being fully supported by post-accident photos of the LGV showing the damage sustained in the accident.

16.  For Ms Liu, her evidence went unchallenged. And most of her evidence are covered by, and supported by, documentary evidence, though the alleged policy of plaintiff with AXA was not disclosed nor produced. On the whole, there is nothing inherently improbable about her evidence. I accept her evidence as the truth.

17.  On the basis of my assessment of the evidence above, I find as follows.

My findings

18.  On the day of the accident, the LGV was owned by the plaintiff and driven by Mr Tam. On the same date, it was insured by the plaintiff with AXA General Insurance Hong Kong Limited (AXA) under a motor policy (the policy).

19.  The LGV was manufactured in 2012 with Japan as its country/place of origin. The make is Toyota. The model is Hiace diesel LWB.  The seating capacity is 5. Its gross vehicle weight is 2.8 tonnes. Its date of first registration was 27 Nov 2012.

20.  On the same day of the accident, the defendant was the registered owner and driver of the van. At 1000 hours thereof, the defendant negligently drove the van that the front of the van rammed into the rear of the LGV, with the LGV damaged at the point of impact as a result.

21.  The LGV was sent to a garage i.e. Crown Motors Ltd. (Crown) for repairs caused by the accident.

22.  By an estimate dated 18 Jul 2014, Crown quoted repair costs for the LGV in the sum of $41,405 for labour and in the sum of $34,867 for parts thereof.

23.  On the instructions of AXA, which received the claim of plaintiff under the policy, the surveyor inspected the LGV at Crown on 21 Jul 2014 to assess its reasonable repair costs and reported its adjusted repair costs to AXA by way of a motor survey report dated 22 Jul 2014 (that forms part of the report of Mr Lee lodged with court).

24.  The LGV was observed (and photos were taken as record) by the surveyor to have been moderately damaged at its rear i.e. the point of the impact in the accident.

25.  The surveyor charged AXA $600 for the survey it undertook of the LGV in July 2014 and AXA had paid the said sum.

26.  According to the report and Mr Lee’s opinion therein which this court accepts, reasonable (and adjusted) costs of repair of the LGV are in the sum of $29,893.5 for labour and the sum of $25,906.8 for parts (which parts were further adjusted for betterment or depreciation in sum of $3,886), making a total adjusted repair costs of $51,914.3 i.e. $29,893.5 + $25,906.8 - $3,886.

27.  Under the policy, the plaintiff was required to pay its own excess in the sum of $7,000.

28.  As a result, the plaintiff paid Crown the 2 sums of $7,000 and $3,886 totaling $10,886 by visa on 14 Aug 2017. And AXA on 2 Sept 2014 paid Crown the rest of the adjusted repair costs in the sum of $44,914.3 i.e. $51,914.3 - $7,000 to get the LGV repaired for the damage its sustained in the accident.

29.  After the LGV was repaired by Crown, it was returned to the plaintiff.

30.  Subrogated to plaintiff’s claim for the accident, AXA on 23 Oct 2014 made a search of the registration of the van at the Transport Department on the date of the accident (and found defendant to be owner thereof) and spent $45 in searching fee.

Repair costs of the LGV

31.  The plaintiff claims the total sum of $55,800.3 respectively paid by AXA ($44,914.3) and it ($10,886).

32.  Where there is an element of betterment or depreciation in the sum paid for parts thereof, that, I accept, is not deductible and remains recoverable at law as it is unavoidable that new parts were used in replacement of old ones in the repair process: Wong Ping Mui v Mak Hung On, unreported, DCCJ 2874 of 2001, Cheung HHJ (as he then was), 12 Oct 2001, para 3-5.

33.  On such principles of law above I follow and my finding of facts above, I allow the total sum of $55,800.3 claimed by plaintiff.

Survey fee

34.  The plaintiff also seeks to recover the costs $600 it paid the surveyor for the July 2014 survey of the LGV. That sounds to me a reasonable sum considering the contents of the report and the work of the survey. I allow it in full.

Vehicle search fee

35.  Finally, the plaintiff claims the sum of $45 AXA had paid the Transport Department for searching the registration of the van on the date of the accident.

36.  As AXA, I accept, paid it in pursuit of plaintiff’s claim in the accident to ascertain the identity of the owner of the van on the date of the accident, I find it reasonable for plaintiff to pay the same and the amount thereof is also, I accept, reasonable. I also allow it in full.

Disposition

37.  Accordingly, I enter final judgment in the total sum of $56,445.3 in plaintiff’s favour against the defendant i.e. $55,800.3 + $600 + $45.

38.  Mr Lau further claims in his opening against defendant pre-judgment interest at judgment rate as from 2 Sept 2014. I accept the starting date as claimed by Mr Lau as most of the judgment was paid by then.  But I think a lower rate is called for and Mr Lau agreed with me in his closing address.

39.  I therefore further order defendant to pay plaintiff interest on above judgment sum of $56,445.3 at HSBC best lending rate(s) from 2 Sept 2014 until the date of this assessment.

Costs

40.  The plaintiff finally claims costs of the assessment of damages from the defendant and asks for summary assessment as per statement of costs it submitted and served on defendant, subject to downward adjustments Mr Lau made before me to delete any possible costs on liability.

41.  Normally, costs follow the event. Given that the plaintiff was awarded more than nominal damages in the assessment of damages and there is nothing before me to depart from this general principle, I think and order the defendant to pay the plaintiff the costs of the assessment of damages, including all reserved costs and the costs of this assessment hearing before me.

42.  Considering the relatively small size of judgment, to avoid disproportionate expenses of formal taxation and to avoid delay involved, I agree with Mr Lau that this case calls for summary assessment. Looking at the adjusted statement of costs before me in all the circumstances of the case, I assess the costs I award and payable by defendant above in the total sum of $40,000.

43.  Finally, I thank Mr Lau for his assistance.