SONIA SIN v. NAN FUNG TEXTILES LTD AND ANOTHER

HEADNOTE

                Measure of damages for a Mercedes 200 of 1975-6 model in mint conditions but short of being a freak article the apple of one's eys - whether the exception in O'Grady v. Westminster Scaffolding Ltd. (1962) 2 Lloyds Report 238 that damages well in excess of costs of repairs were awardable if the damaged oar was irreplacible in open market applied.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 6647 of 1984

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BETWEEN

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EX-TEMPORE - JUDGMENT

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1. This is an action by the Plaintiff against the 1st Defendant as the owner and the 2nd Defendant as the driver for damages done to the Plaintiff's private car, a Mercedes 200 of the 1975 model, No. 893, as a result of a traffic accident occurred at about 7.30 p.m. on February 18, 1984 on the Princes Margaret Road Fly-Oven.  It is not in dispute that the 2nd Defendant was entirely at fault for the collision as he was on the wrong sight of on-coming vehicles in the opposite carriage-way. Both Defendants, for the purposes of these proceedings, have admitted liability as well as items 2 and 3 under claim. The main issue before me is one of quantum, in respect of item No.1, namely the costs of repairs.

2. Also not in dispute was the fact that $44,599.20 were in fact incurred for repairing the Plaintiff's car effected by the sole agency for Mercedes Benz in Hong Kong, Zung Fu Ltd., and the reasonableness of the costs for the work done is not in question. The main questions are whether it would be reasonable for the Plaintiff to have the car repaired as the costs of repair by and large would be more than 2 or 3 times than buying a similar car and what the value of No.893 was at the time of the accident. There is of course the other aspects of the case, namely at the time of the accident, the 2nd Defendant had signed a Chinese agreement undertaking to pay for all costs of repairs, and it falls upon me to construe this agreement, Exhibit P2.

3. With respect, I do not agree with Mr. Smith that the agreement was no more than admitting full liability. In a separate sentence, at the end of admitting liability, the undertaking for all the costs of repairs was entered. Nor am I of the same mind that there is a total lack of consideration for the agreement. Surely saving time, costs and trouble of litigation, must be in the mind of the 2nd Defendant at the time and as such it constituted some consideration for the agreement. It is trite law that once there is some valid consideration, the Court is not concerned with the sufficiency of the consideration. However, I construe the agreemont to entail an implied term that the repairs and the costs for such repairs must be both reasonable for the purpose of restitution to his pre-accident conditions. It follows that the question of reasonableness could not be contracted out by this agreement, as Exhibit P2 must be read subject to such reasonableness. There is no escape from tackling with the two main questions I have earlier on mentioned.

4. I am of one mind with Counsel for both sides that it is not open to me to give an arbitrary figure on the value of the car but I must act on the evidence. In this regard, the figure of $25,000.00 being the insurance premium for No.893, shortly before the accident, cannot be conclusive as not being a genuine and scientific assessment of its value then. Besides, I have accepted Mr. Sin's evidence that he did not mean to cover the car for its full value for saving premium with his preparing to personally underwrite against the balance. In fact that after the accident he was prepared to pay as much as over $44,000.00 to put it right was a good indicator of his honest estimate of its value to be over $25,000.00 at the time of the coverage.

5. Of the evidence of the two experts I prefer that of Mr. Siu to that of Mr. Yan. Mr. Siu specializes in one of his two fields as a second car dealer, whereas Mr. Yan dealt with second-hand cars merely as a sideline of his sole agency, giving supporting service for side service to customers who patronize the company. Albeit Mr. Yan dealt with more Mercedes than Mr. Siu. I have accepted Mr. Siu's evidence that he had some 30 to 40 second-hand dealings in Mercedes previously. Mr. Yan (D.W.1) spoke more from the angle of a sole agent salesman rather than a second hand dealer. Naturally the sole agent would be more pleased to sell out new cars in stock than to sell out second-hand cars, which came in usually as part of trade-in cars. Admittedly, Zung Fu was not looking for a big profit margin for the disposal of such trade-in cars. As rightly pointed out by Mr. Sceats, neither the Managing Director of Zung Fu nor Mr. Yan had examined No.893 before the initial estimate of $7,000.00 was given as to its value notwithstanding that the car was in their custody for some time. In fact No.893 was repaired by Zung Fu for over $44,000.00. Nor did Mr. Yan, and presumably anyone else in Zung Fu looked at its record on the available stock of Mercedes, similar to No.893 in model at the time when the valuation was given - not even up to yesterday. I fully appreciate the expertise and the strong personal view of Mr. Yan, but I do not accept his estimate of $15,000.00 as the maximum as being the true value.

6. I have no difficulties in finding that No.893 was in its mint conditions immediately before the accident, excellently maintained and serviced, and meticulously being taken care of by Mr. Sin, a very well-known and experienced solicitor and perhaps a celebrety and a car enthusiast. It was simply not an average car for that model. It is obvious that Mr. Sin and perhaps his family, including the Plaintiff, attached certain sentimental value to it, to which I shall allude.

7. When I accept the evidence of Mr. Siu (P.W.2) I accept it on the basis that $33,000.00 was the about right true value for the purchase of a car comparable to No.893. I think Mr. Yan must be right when he said the maximum for the cost for the purchase of such a car was about $15,000.00 if he meant a average car. I do not accept Mr. Siu's evidence if his estimate was meant to be merely a very good car of the sane model but not as good in conditions as comparable to No.893. Look at it from another angle, had I accepted the evidence of Mr. Yan that the cost for replacement at the time would be $15,000.00 I would have held that the costs of bringing such a car purchased to the conditions of No.893 before the accident, would be in the region of, say $18,000.00 to $20,000.00.  So much so for the facts now the law.

8. (See Darbishire v. Warran (1963) 1 W.L.R. 1067 at 1074-5, per Pearson L.J.).

9. That is of course subject to the test of reasonableness as stated at page 1075 and 1072 of the sane Judgment. At 1075 it was said

"The true meaning is that the plaintiff is not entitled to charge the defendant by way of damages with any greater sum than that which he reasonably needs to expend for the purpose of making good the loss.   In short, he is fully entitled to be as extravagant as he Pleases but net at the expense of the defendant."

10. To these general principles there is at least one relevant exception in O'Grady v. Westminster Scaffolding Ltd. (1962) 2 Lloyds Report 238, in which full cost of repairs ever and above that for a replacement was allowed on the ground that it was an unique car, a freak article, which was the apple of the Plaintiff's eye in that it was irreplaceable at the time, and that do Plaintiff had spent some £300 to £400 a year prier to 1960, to bring it to such unique and freak conditions. I must stress that those conditions were conditions to the car in contradistinction to the model or type of the car. was decided uniquely on an unique basis special to its own facts those unique, freak, an apple of one's eye conditions that are absent in this instant case. Mint as it was, it was not such a freak, an apple of one's eye that it was irreplaceable at the time. The O'Grady exception in my mind has no application here. Mr. Sin did net give evidence en what offorts, if any, and what attempts, if any, that he had made prior to December, some eight months after the accident, in looking for a comparable replacement; all he said was that in December he came across the newspaper advertisment in which a asking price of a similar model was stated to be $23,000.00. He might have thought that it was unlikely that he could obtain one, but certainly he did not say in evidence that efforts had been made. Here, we do not have the irreplaceable element or the unique and freak element as in O'Grady. I have not lest sight of the facts that some $3,000.00 were spent two or three months prior to the accident on the body and the carburettor of No.893. Nor the fact of life that economic conditions in Hong Kong were not as good as they should have been in the days of February and December with residuary aftermath of the world economic recess on the one hand and the political cloud on the other hanging over us.

11. All things and all evidence considered, I have come to the conclusion that the about right-true estimate of the car on the basis of the obtainable replacement of comparable conditions would be in the region of $33,000.00 and no more or alternatively the cost of the purchase of ansimilar car of average conditions plus the cost of bringing it to the mint conditions as it was to the pre-accident time would be about the same. Judgment is therefore entered for the Plaintiff in the sun of $33,870,00, being $33,000.00 for item 1 plus item 2 and item 3 both as claimed. I shall hear Counsel on the matter of costs, the decision on which will be recorded in the Notes of Proceedings to save the length of this Judgment.

12. One other witness I have forgotten to mention and that is the other expert witness, the adjuster, called by the Defendant. His evidence is obviously based on information obtained from Zung Fu and three other car dealers. At best, it is second-guessing evidence hearsay. I place no weight whatsoever on his evidence.

13. I should add that Judgment is entered against both Defendants jointly and separately with interest at the rate of 8% per annum from date of writ to to-day and thereafter at 13% per annum till payment.

14. I am indebted to Counsel for their useful assistances in this matter.