IEONG CHEONG KIT v. HOSSAIN M AKHTAK

DCCJ 4150/2016

[2018] HKDC 1295

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4150 OF 2016

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is an assessment of damages arising out of a water seepage case. Interlocutory judgment was entered on 21 November 2017.

2.  On 19 July 2016, the plaintiff purchased Flat 11 (No 13 Man Wai Street), 11/F Man Yuen Building, Nos 2-24 Man Yuen Street & Nos 1-13 Man Wai Street, Kowloon, Hong Kong (“Flat 1111”) from his aunt (one Madam Feng Shao Ling) and has become the registered owner thereof since then.  At all material times, the defendant was and is the registered owner of the flat immediately above Flat 1111 (“Flat 1211”).

3.  The water seepage had occurred in Flat 1111 well before the plaintiff became its owner, back in mid-2012.  At that time, the plaintiff already handled the water seepage problem on his aunt’s behalf, and made various complaints to the defendant, but the seepage continued.

4.  On 23 August 2016, the plaintiff issued a Writ (indorsed with the Statement of Claim) against the defendant to recover damages suffered as a result of the damage done to Flat 1111 by the seepage originated from Flat 1211.

5.  The claim was pursued upon the pleaded causes of action of (1) nuisance, (2) negligence and (3) breach of DMC.  However, at this hearing, the submissions made by Ms Katrina Lee, counsel appearing for the plaintiff, to support her client’s claim was basing solely on nuisance, without resorting to the other two causes of actions.

6.  In the Statement of Claim, the damages sought for comprises of (1) costs of repair, (2) loss of rent, (3) general damages for inconvenience and discomfort caused by the water seepage, and (4) surveyor and professional fee. In addition to the aforesaid damages, the plaintiff also prayed for an injunction against the defendant to abate the seepage nuisance.

7.  The defendant failed to file any acknowledgment of service of the Writ. As said, default judgment on liability was eventually entered.  In that judgment, Deputy Judge C Chow also granted a mandatory injunction directing the defendant to take all reasonable steps to abate the water seepage originated from his property.

8.  Thereafter, the notice of appointment of assessment of damages was served on the defendant, but he continued to fail to take any step in these proceedings, nor did he show up at this assessment hearing.

9.  This court is satisfied that the aforesaid notice of appointment was properly served and the notice of assessment hearing was also duly given to the defendant.  It would be appropriate to proceed with the hearing in the defendant’s absence.

Abandonment of parts of the plaintiff’s claim

10.  At the outset of the hearing, Ms Lee informed the court that the plaintiff would “abandon” the claim of surveyor and professional fee of HK$23,000, as such item should form a part of the plaintiff’s costs.  However, on the evidence before me, I find that this sum was apparently incurred by Madam Feng, but not the plaintiff, in November 2015 whilst she was still being the owner of Flat 1111.  In particular, the receipt was issued by the surveyor to Madam Feng, and the report stated that the client was Madam Feng[1]. In these circumstances, I hold that such item is not recoverable, be it pursued as “special damage” or as a part of the plaintiff’s costs.

11.  Although “loss of rent” was claimed in the pleadings from October 2015 onwards, Miss Lee very sensibly indicated that the plaintiff would abandon the claim for such loss for the period from October 2015 up to 18 July 2016 because the plaintiff was not yet owner of Flat 1111 during that period of time.  Ms Lee asked this court to award loss of rent to the plaintiff from 19 July 2016 onwards up to the date of assessment.

The evidence

12.  The plaintiff’s evidence given in court on the remaining part of his claim is credible and supported by contemporaneous documents.  It is also uncontested.  I accept such evidence of his as mentioned in this assessment as described below.

13.  The plaintiff testified that Flat 1111 was partitioned into 4 rooms (respectively called ‘Room 1’, ‘Room 2’, ‘Room 3’ and ‘Room 4’) for the purpose of leasing out.   It was Room 1 and Room 2 that have been affected by the water seepage.

14.  The plaintiff’s mother and Madam Feng are sisters, and before his purchase of Flat 1111, the plaintiff’s parents and his elder sister already assisted Madam Feng in collecting rents from the tenants.  The plaintiff was thus conversant with the rental affairs, the history of the seepage, and how it had been adversely affecting the subject two rooms.

15.  In the latter half of 2013, the Joint Office[2] conducted colour water test at Flat 1211, and the result was positive confirming that the source of seepage found in Flat 1111 was originated from Flat 1211.  The defendant was notified of the result accordingly.

16.  Although the water seepage had paused for a few months since mid-2014, but it resurfaced in Room 1 and Room 2 around October 2014. 

17.  The water seepage problem worsened progressively, and dripping from ceiling often occurred during 2015, the area of mould on the ceiling extended, and the reinforced steel bars at the ceiling were exposed.  The situation became so intolerable that the tenants of the two rooms requested earlier termination of their tenancies in October 2015. Madam Feng had to accept with reluctance as the two rooms had effectively become inhabitable, and they have been left vacant since then. 

18.  Around the same time, on 15 October 2015, Hong Kong Building Inspection & Structural Diagnostic Ltd (“HKBI”) was engaged to investigate into the cause of seepage, and to conduct site inspection and tests at Flat 1111 and 1211 for such purpose.  HKBI was paid HK$23,000 as their survey and professional fee (i.e. the fee as mentioned in para 10 above).

19.  Apart from giving the aforesaid testimony, the plaintiff also produced two expert reports for this hearing both prepared by Mr Hau Tung Chau (“Mr Hau”) of HKBI[3].

20.  Mr Lau is a chartered surveyor and a registered professional engineer.  Having considered his professional qualifications, experience and expertise as per the curriculum vitae attached to his first report[4], I am satisfied that he was qualified to give expert evidence for this case.

21.  In his first report dated 10 December 2015, Mr Hau set out his inspection findings and results of tests carried out at the site on 15 October 2015.   Therein, he also gave his expert opinion on the source of seepage, and estimated the necessary repair costs at HK$48,100. 

22.  His second report of 18 September 2018 focused on quantum, and Mr Hau revised the repair costs to HK$62,900 after carrying out a recent inspection of the subject two rooms on 25 August 2018, in which he observed more extensive and serious damage at the affected areas, as compared with their conditions in October 2015.

Repair costs

23.  Damages for costs of repair and reinstatement is recoverable for physical damage caused to the property by the nuisance, and so is the damages for the chattels damaged in addition.  See: McGregor on Damages, 20^th ed, para 39-017; Clerk & Lindsell on Torts, 22^nd ed, para 20-29.

24.  As regards to the repair costs in question, Mr Hau in his first report systematically dealt with the affected areas at Room 1 and Room 2, and gave his reasons as to why in his view they are caused by seepage sourced from Flat 1211. I found his reasoning sound and reasonable and back up by the empirical data taken by him and the tests conducted during the inspection on 15 October 2015. 

25.  In particular, it is important to note that on the date of inspection, color water ponding tests were conducted by Mr Hau at the shower tray and the floor platform of the guest bathroom as well as at the floor platform of the master bathroom of Flat 1211[5] respectively.  The test result is that colour water was subsequently found dripping from the ceiling of Room 1 near Room 2[6], as well as from the ceiling of the bathroom of Room 2 on the same day[7].

26.  In Mr Hau’s expert opinion, the seepage occurred in the subject two rooms was caused by the failure of waterproofing work at the floor of the two bathrooms and at the shower tray of the guest bathroom of the upper unit.[8]

27.  Viewing the seepage history of this case and taking further into account of Mr Hau’s expert evidence (which I accept), I find the damage done to the walls and ceiling of Room 1 and Room 2 as depicted in the photos shown in the two reports are all caused by water seeped from Flat 1211.  

28.  In the first report, with respect to Room 1, the observed damage included water stain and paint peeling found at the concrete ceiling, and water stain, paint peeling and bulged painting at the walls. 

29.  Whereas, rust stain was found on the false ceiling of Room 2.  The hanging cabinet was found affected by seepage and out of shape, and water stain was found on the wall adjacent to the bathroom within Room 2.  Inside that bathroom, reinforced steel bars at the ceiling were exposed, water was found dripping down along the wall.  The false ceiling of the bathroom was also found rusted.

30.  In the second report, in Room 1, the paint peeling and the bulged painting were found to be much more serious and extensive, and the area of exposure of the reinforced steel bars was much larger.  Significant cracks were also found at the beam directly above the window where the air-conditioner was installed.

31.  In Room 2, the hanging cabinet became totally distorted.  The false ceiling appeared to be heavily rusted and collapsed.  The wall papers on some of the walls were found bulged and peeling off.  The range hood underneath the hanging cabinet was found rusted as well.  The top of the base cabinet (under the range hood) was seriously affected by the rusty water flowing down from the false ceiling along the wall adjacent to the bathroom.  Dripping was found at the concrete ceiling, and even some stalactites were formed[9], reinforced steel bars were exposed and rusted.  Inside the bathroom, water stain and water dripping were found at the concrete ceiling, and the false ceiling was found rust.

32.  On the evidence before me, I find the repair work to be done to the two rooms (including the replacement of the said hanging cabinet, base cabinet, range hood and air-conditioner) as recommended by Mr Hau in his 2^nd report to be necessary in light of the serious water seepage and the extent of damage done to the electrical appliances and the kitchen cabinets.   I also find that the defendant would have knowledge (constructive if not actual) of Flat 1211 being the source of seepage occurred in Flat 1111 after he had been notified of the colour water test result in the latter half of year 2013. (see : para 15 above).

33.  In my view, Mr Hau’s updated estimated repair costs of HK$62,900 is also reasonable given the larger scale of the repair work as required to be done for the more serious and extensive damage found in the two rooms in August 2018 as compared with their earlier conditions.   I hold that the defendant shall be fully responsible for paying such amount of repair costs to the plaintiff.

Loss of rent

34.  Loss of rent is also recoverable as damages consequent upon the injury to the property by the nuisance.  See: McGregor on Damages, 20^th ed, para 39-026.

35.  In my view, the conditions of the two rooms in question were so adverse that would make them unfit for habitation since October 2015.  As such, the plaintiff has not been able to lease them out likewise after he had become the owner on 19 July 2016.

36.  In particular, I accept the plaintiff’s evidence that the water seepage has become more and more serious as time goes by.  His testimony is supported by the aforesaid two site inspections by Mr Hau.  The plaintiff also testified that the water seepage still continues, and the dripping of water found at the ceiling of Room 1 has become so serious that on one occasion in about February 2018 he found water on the whole floor surface of Room 1, and such water came from the dripping.

37.  His evidence in this regard is inherently credible in light of very high moisture content readings[10] were obtained by Mr Hau in relation to the affected ceiling and wall at Room 1 back in October 2015.   Dripping of colour water was found at the ceiling of Room 1 soon after the ponding tests were conducted in the above unit.[11]  The damage found at the ceiling (where such dripping occurred) and the wall and beam in the vicinity was observed to be particularly serious according to the photos taken by Mr. Hau at Room 1 in August this year.

38.  Further, on the evidence before me, I am satisfied that the water seepage has not yet been resolved and still continues.  The subject nuisance gives rise to a continuing cause of action, and according to Order 37 rule 6 of the Rules of District Court (Cap 336H), the plaintiff is entitled to claim for such loss of rent up to the date of assessment. See: Uni Industries Ltd v Omega International Ltd & Ors [2005] 1 HKC 415 : the Court of Appeal (at pp420-421) cited the judgments of Lindley LJ and Smith LJ in Hole v Chard Union [1894] 1 Ch 293 at pp295-296.

39.  At the time of early termination of the tenancies of the subject two rooms brought about by the water seepage problem, the monthly rents for Room 1 and Room 2 were HK$4,800 and HK$4,000 respectively[12].

40.  Given the state of evidence before me, I am entitled to and find it reasonable to quantify the plaintiff’s entitled loss of rent for the period from 19 July 2016 up to the date of assessment (27.4 months approx.) as follows:-

HK$(4,800 + 4,000) per month x 27.4 months

= HK$241,120

Damages for distress, discomfort and inconvenience

41.  In fact, the dripping problem at Room 1 became so regular and severe since February 2018 that the plaintiff himself had put several large styrofoam boxes and buckets under those parts of the ceiling where the dripping occurred, and he had to remove the accumulated water once a week.  Apart from that, he also needs to clear away the water on the floor in Room 2 as dripped down along the wall from the ceiling.

42.  He was distressed by all these disturbing works and they also brought him much inconvenience.[13]

43.  Under the law of private nuisance, damages for distress discomfort and inconvenience is claimable.  See :  Cosmo Legal Consultant Ltd v Skycherry Development Ltd & Anor (unrep, DCCJ 2548/2009, 14 May 2013), at paras 90, 111 and 116; Lau Ting Hang & Anor v Leung Chi Wing (unrep, DCCJ 6539/2005, 18 February 2008), at paras 30 and 34.

44.  In John So v Lau Hon Man [1993] 2 HKC 356, it is a case of nuisance caused by water seepage pursued in a breach of DMC context.  The Court of Appeal observed that there is no scientific way of translating inconvenience and discomfort into a sum of money; it has to be a conventional sum[14].

45.  In that case, the Court allowed HK$10,000 for the inconvenience and discomfort suffered by the appellants owing to water leakage for a period of about 1.5 months.

46.  In Lau Ting Hau (supra), His Honour Judge Leung found at para 34 that the discomfort, inconvenience and disturbance suffered by the owner plaintiff included the need to attend to the dripping water for a period of time, moving out of the unit for over a month out of their concern about the health of the new born baby, the baby’s suffering after their return to the unit and the bad condition of the bedroom in which they had to sleep in.  The seepage apparently lasted for no less than 2 years[15]. HK$$30,000 was awarded for this loss.

47.  In addition, I also considered two other authorities cited by Ms Lee on this matter.  One is Chau Chung Mei v Leung Ying Ngai (unrep, DCCJ 4062 of 2012, 29 September 2014) in which the court awarded HK$20,000 for this head of damages: the seepage had lasted for about 3 years by the time of trial, and the plaintiff likewise rented out the property (partitioned into 5 rooms).  Deputy Judge Jason Wan observed (at para 21) that the plaintiff was not occupying the premises, but would nonetheless be vexed in spending much time in handling the tenants’ requests brought about by the seepage.  The other one is Tsai Hsiu Yun v Lim Goine alias Lam Mui Kaw (unrep, DCCJ 862/2015, 22 August 2016) where Deputy Judge Brian Mak found the situation of the plaintiff very similar to Chau Chung Mei and also awarded HK$20,000 under this head. (see: paras 22 to 25 of the judgment)

48.  In this case, the plaintiff claims HK$35,000 for this head of loss. Although the seepage has been affecting the two subject rooms for about 2 years 3 months since the plaintiff became the owner of the property, it is notable that, as in the case of Chau Chung Mei,he has not been living inside Flat 1111.  As pointed out above, the subject two rooms were for leasing out for profits.  Hence, there should be no award of damages to the plaintiff for such kind of discomfort or distress as may be suffered by an occupier claimant in situations where he or she would be living inside a property as affected by seepage nuisance.

49.  On the other hand, I agree with Ms Lee’s submission that the nuisance did cause the plaintiff significant distress and inconvenience by forcing him to return to the subject two rooms to attend to the dripping problem and their regular cleaning as caused by the seepage.   In my judgment, as a matter of principle, such type of distress and inconvenience suffered by the claimant owner so caused by the nuisance is compensable.

50.  The plaintiff further said that the since the occurrence of the water seepage problem in Flat 1111, he personally had spent much time and effort in liaising with the defendant to resolve the seepage, but to no avail, and this was very distressful.   However, the plaintiff had no right or interest in the land to pursue any loss caused by such kind of distress before he became the owner of the property at any rate.    

51.  After the plaintiff became the owner of Flat 1111, there is nonetheless no or no clear evidence to show that he had personally approached the defendant anymore.  Though, the plaintiff did say that he liaised with the Joint Office in March 2018 to arrange a further ponding test conducted in the upper unit, and the test result was likewise affirmative of Flat 1211 being the seepage source.

52.  Apart from the aforesaid, it is observed that the plaintiff has been further vexed by the uncertainty of not knowing when the water seepage problem could be finally resolved when the defendant did not even bother to take step to abate the seepage even after the Court had issued the injunction against him back in November 2017[16].

53.  Bearing in mind the particular circumstances of this case as highlighted above and making reference to the precedents, I assess the plaintiff’s damages under this head at HK$20,000.  

Award

54.  In the premises, the damages awarded to the plaintiff is in the total sum of HK$324,020, ie HK$(62,900 + 241,120 + 20,000)[17].

55.  Accordingly, it is ordered that that the defendant shall pay the said sum of HK$324,020 to the plaintiff together with interest accrued thereon at 1% above HSBC’s best lending rate from the date of Writ until the date of this award, and thereafter at judgment rate until full payment.

Costs

56.  Normally costs should follow the event.  I make a costs order nisi that save and except for the costs already covered under Deputy Judge C Chow’s costs order in relation to the interlocutory judgment on liability and the injunction[18], costs of these proceedings, including all costs reserved (if any), be paid by the defendant to the plaintiff, with certificate for counsel, to be taxed if not agreed.  This costs order nisi shall become absolute in the absence of any application to vary the same within 14 days from the date hereof.

57.  Lastly, it remains for me to thank Ms Lee for her assistance provided to this court.