LAM PO CHUN v. LEUNG WAI CHUN

DCCJ1085/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1085 OF 2003

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JUDGMENT

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1. The plaintiff is one of the joint tenants of Flat 3, 2nd floor, Block B, Yau Lai House, Yan Shing Court, Sheung Shui, the New Territories. Her husband Chan Tak Cheong, being the other joint tenant, has assigned all his rights in this action to her. The defendant is the registered owner of Flat 3, 3rd Floor of the same building which is the flat immediately above the plaintiff's flat.

2. The plaintiff and her husband left their flat in the afternoon on 11th August 2002 and returned shortly before midnight. When they entered their flat, they found that water was dripping down from the ceiling. They also found that the ceiling and walls were covered with water and all the chattels, fixtures and the floor were soaked with water. They immediately notified the management office and two caretakers came to investigate the problem. The management immediately turned off all the water supply to the plaintiff's flat and the defendant's flat.

3. The management came again on 12th August, 2002 and conducted further investigation into the source of the seepage. They applied the water pressure test and found that the seepage probably came from the defendant's flat. They duly notified the defendant and requested her to effect repair. The defendant on 13th called in her own repairman who, after investigation, thought that the seepage came from a burst fresh water supply pipe embedded in the wall of the toilet in the defendant's flat. On 14th, the defendant installed some exposed copper piping in her toilet to bypass the embedded leaky pipe. There was no more seepage problem in the plaintiff's flat since the installation of the copper bypass by the defendant.

4. The plaintiff alleged that as a result of the seepage, she had suffered substantial loss and damage. She sued the defendant for the same. Liability was conceded at the start of the trial, but quantum was seriously contested.

5. The plaintiff's flat was divided into several parts; namely a master bedroom at one end and a kitchen and a toilet at the other end. The living room was in the middle. There was a small bedroom room on one side of the living room which was away from the master bedroom but right next to the kitchen and toilet. In fact, the toilet was originally right next to the small room, but it had been relocated to the end of the kitchen to make way for the enlargement of the small bedroom and the living room. There was no such relocation upstairs, thus the leaky pipe, which was embedded in the wall of the toilet upstairs, was almost right above the small bedroom downstairs.

6. The plaintiff said that she had mopped up the flat on 12th August after the seepage and had repeated the mopping several times thereafter. She had also returned to the flat every day to inspect the conditions and to sort things out.

7. The plaintiff alleged that because of the seepage, many items of electrical and electronic appliances had been damaged and become useless. They had to be thrown away. Though the seepage was a one-off incident, she also alleged that the seepage had damaged all the wall and ceiling papers, many fixtures, fittings and the parquet so that she had to redecorate the whole flat. For the damaged electrical and electronic appliances, the plaintiff claimed that she had paid a total of HK$60,963.00 for their purchase (which included HK$3,000 for checking the electrical circuits in the flat and HK$3,300 for removal from and back to the flat). She also alleged that she had spent HK$149,136 for the redecoration (which included HK$7,500 for dismantling and trucking away the damaged fixtures, fittings and parquet). In addition, she further alleged that she had to move away for 1 1/2 months because of the decoration and thus had incurred HK$7,500 as rental for the alternative flat. Her fourth claim is for HK$5,760.00 as the surveyor's fee and her final claim is for general damages for trouble, inconvenience, annoyance and discomfort.

8. The plaintiff in support of her claims produced a few invoices evidencing her purchase in the past of some items which had been damaged by the seepage of water. She also produced:

(i)	an invoice dated 15th August, 2002 and issued by one Lee Tung Electrical Engineering Co. for HK$3,000 which was incurred for checking the electrical circuit and all the switches in the flat and the installation of a temporary lighting in the small room;
(ii)	an invoice/receipt dated 17th August, 2002 and issued by a transportation company called Lung Kee for the removal from her flat to another flat for HK$1,500;
(iii)	a receipt dated 19th August, 2002 and issued by one Consumer Appliances Service Ltd. for the checking of a washing machine for HK$300;
(iv)	a receipt dated 21st August, 2002 and issued by one Po Shing Television Engineering Co for checking a number of electrical and electronic appliances for HK$200;
(v)	two receipts dated 17th and 20th August, 2002 for laundry for HK$300 and HK$200 respectively;
(vi)	two rent receipts dated 9th September, 2002 and 4th October, 2002 for HK$5,000 and HK$2,500 respectively; and
(vii)	an invoice/receipt dated 3rd October, 2002 and issued by the said transportation company for the removal from her flat to another flat for HK$1,800.

9. The plaintiff's solicitors issued a hearsay notice on 20th August, 2003 notifying the defendant's solicitors that the aforesaid documents would be used as hearsay evidence and the makers would not be called. The defendant's solicitors on 22nd August, 2003 issued a counter-notice requiring the plaintiff to call the makers of these documents. Despite the counter-notice, none of the makers including the person who issued the invoice dated 21st August, 2002 for Po Shing Television Engineering Co. for checking the electrical and electronic appliances was called by the plaintiff.

10. Though she had produced a few receipts evidencing her purchase of some appliances back in 1994 when she moved into this flat, she did not produce any invoice to show her purchase of new appliances which were for replacement of the damaged ones.

11. In support of her claim for redecoration, she produced a quotation of 3 pages issued by the said Lee Tung Electrical Engineering Co. enumerating the items of fixtures and fittings that had to be dismantled and trucked away and the new items of fixtures and fittings to be made in the living room, master bedroom and the small room. This document dated 27th August, 2002 was described in the list of documents as an invoice from Lee Tung, but the plaintiff clarified that it was a detailed quotation that she had asked Lee Tung to provide her with in the course of the redecoration. She further said that Lee Tung had initially given her a quote of the costs required for the works but without breakdown. Lee Tung then started working. In order to avoid arguments, she then asked Lee Tung to provide her with a detailed breakdown of the items of work in a quotation. She recalled that the decoration started on about 20th August and it lasted for about a month. The quotation produced was dated 27th August, 2002. Thus, it was provided in the course of the works.

12. I asked the plaintiff whether she had negotiated with Lee Tung on the price of the works in the quotation. She said that the negotiation was done by her husband. But as she was claiming the whole sum in the quotation, she agreed that Lee Tung had refused to give any reduction or rounding down whatsoever from the said sum of HK$149,136 in the quotation. Since her flat is in Sheung Shui and Lee Tung operated in the Western District on Hong Kong Island, I asked her why did she not patronize a contractor operating in the Sheung Shui area but had chosen one which operated far away. She said that Lee Tung was introduced to her by her brother in law (husband of her elder sister). Apart from the quotation, she had not provided any invoice from Lee Tung seeking payment. She also said that Lee Tung had not issued her with any invoice or receipt and she had paid Lee Tung the whole sum of HK$149,136 in cash. She also said that she had not thought of the idea of letting the defendant know in advance that she was going to engage a contractor to do the works at the price quoted so that the defendant could react to it despite her intention to ask the defendant to indemnify her such costs.

13. The hearsay and counter notices above-mentioned covered this quotation but the person who issued the quotation for Lee Tung was also not called. Furthermore, some items in the quotations had been marked with ticks and some not. She said that the ticks were made by her husband and she did not know why he did that. But she was adamant that all items of work in the quotation had been carried out by Lee Tung. The plaintiff's husband was also not called to give evidence.

14. In addition to the quotation, the plaintiff also produced a number of photographs to show the conditions of the premises and the damage thereto. She admitted in cross-examination that she took the photographs to record her loss. She also confirmed that she had taken altogether 25 photographs in the afternoon of 12th August, 2002 which was the day when the seepage was discovered. Of these photographs, 14 were taken in the living room, 7 in the small room, 2 in the toilet/kitchen and 2 of an electric organ. But none of these photographs was taken in the master bedroom. She could not tell why she had not taken any photograph in the master bedroom, but then admitted that the seepage concentrated in the small room and the living room. In fact, her surveyor's report also recorded that she had told her surveyor that the most serious damage was in the small room for the children and the condition in the master bedroom was not very bad. Despite this, she had caused to be made in the master bedroom a new hand-painted wooden lining for the ceiling and wall joint, a new lining made of tiles for the wall and floor joint, a new flooring with polished tiles, a new hand-painted door with new hand-painted doorframe and a new hand-painted curtain frame. She also had new hand-paint applied to the bed, the wardrobe and a desk in this room. She also threw the mattress away.

15. On the maple wood parquet for the whole flat, she said that it had been soaked and arched upwards and had to be replaced. She replaced it with a flooring of polished tiles. But of all the photographs taken by her on 12th August, 2002, only 7 were on the parquet. Of these 7 photographs, 6 of them were on a corner inside the small room and were taken from different angles and distances. The remaining one was on a corner where the refrigerator was. No other part of the parquet was shown in the other photographs taken on this day. These seven photographs showed that there were black stains on the two parts of the parquet. She said that there was no black stain before this seepage incident and the black stain appeared after this seepage despite she had wiped the floor clean within 24 hours of the seepage. She also said that new stain had developed after she had wiped the floor clean and there was no more water. She finally said in cross-examination that she had no idea if the black stain had anything to do with the water though she changed her mind in re-examination. Apart from these 7 photographs, there were four other photographs taken on 21st August which were for showing the big television set and some hi-fi equipments which were said to have been damaged by water coming from above. These photographs however also showed that the parquet around this area was in a clean and polished condition.

16. At the top of the receipt dated 21st August, 2002 and issued by Po Shing Television Engineering Co for checking the electrical and electronic appliances, there was written "ATTN: 方先生" (Mr. Fong in Chinese). When cross-examined on who was this Mr. Fong, the plaintiff said that it was a person working with a surveyor's office. When questioned by the court, she admitted that she was then already in touch with a surveyor. She also admitted that she had not then asked the surveyor to come to survey the damaged conditions but could not give any reason to the court on why she had not done so.

17. I find that the plaintiff is not a reliable witness for the following reasons:

(i)	She was then already in touch with a surveyor. She also knew that she had to take photographs to record her loss and damage. However, she did not ask the surveyor to come and carry out an independent survey of her loss and damage. She only asked her surveyor to conduct a survey on 24th December, 2002 when the redecoration had been completed and she had already moved back for over two months. Her surveyor in the report could not make any comment on the damage from first hand inspection but could only rely on what she said and the photographs taken by her. It is highly possible that the conditions in the flat were not very bad and thus an inspection and report by an independent surveyor would not have revealed much damage. It was after all only a one-off seepage though it might have lasted for a few hours.
(ii)	In taking the photographs to record her loss and damage, she did not find it necessary to take any photograph on the conditions of the master bedroom, but she had then found it necessary to carry out many items of redecoration works therein. Her conduct on 12th when she took the photographs was thus inconsistent with and did not support what she did later.
(iii)	She produced some photographs on only two spots of the parquet showing black stains and tried to use them to justify the replacement of the whole flooring by a polished tile flooring, but there are other photographs showing that other parts of the parquet were in good condition. Her evidence on the flooring was thus flawed.
(iv)	Her story that black stains developed on parquet within 24 hours of soaking with water cannot be believed. Black stains will only develop on maple parquet after prolonged soaking with water and not as soon as 24 hours. Her allegation that further stains had developed after she had wiped the parquet clean and dry is also unbelievable if she meant that the stain was caused by the seepage.
(v)	It is surprising that Lee Tung would have been so firm on the price quoted and did not even budge a few percent or a few thousand dollars off the quote or even round it down from HK$149,126 to HK$149,000. To give concession of a few percent or a few thousand dollars and round it down is common. To make this quotation more dubious, there was not even any invoice or receipt for the down payment and staged payments. It is a usual practice in the decoration industry to have a down payment followed by staged payments. The plaintiff also said that she had paid the whole sum in cash. That made it all the more important for her to ask for receipts from Lee Tung as she had no proof of her payment. But she said she had not asked for any. The plaintiff's failure to respond to the counter-notice to call the person of Lee Tung who made the quotation has given this document a further cloak of dubiety. The husband has also ticked many items in the quotation but not all. He was also not called. All these make the quotation and the plaintiff's evidence on the need to redecorate totally unreliable.

18. Since I have found the plaintiff an unreliable witness and will not rely on her evidence, I have to resort to other evidence like the location of seepage, the location of the electrical and electronic appliances, the nature of the original decoration, the fittings and fixtures and to consider whether they had been damaged and how much the defendant should compensate the plaintiff for the repair of such damage or the replacement of the damaged articles. Since I have also found the quotation dubious, even for the items of works that I may find necessary, I may still have to consider what are the reasonable costs and/or prices for them.

19. The seepage was of fresh water and was only a one-off incident though it might have lasted for a few hours, I do not think that it would have damaged any of the wooden furniture after the furniture was wiped clean and dry. Even if the wood should have become wet, once it was wiped clean and dry, it would dry up eventually and would not need to be repaired or replaced. Since the plaintiff did not think it necessary to take any photograph of the master bedroom and it was far away from the source of seepage, I find that there was no damage inside this room except to the ceiling and wallpapers. Even if the fixtures and fittings should have become wet, it was still a minor problem which could be taken care of by wiping them clean and dry. I therefore would not allow any damages for any work done inside the master bedroom save and except for the new ceiling and wallpapers. I also do not think it necessary to throw away the mattress in this room.

20. For the parquet, I cannot rely on the black stains on two small areas as these stains could not have developed from the soaking that lasted only for a short time after the seepage. If the parquet should have expanded and arched, I expect to see some photographs on more areas showing such conditions. I would also point out that the plaintiff had taken photographs in the flat on 16th, 17th, 21st, 22nd, 23rd, 29th August and 2nd September and none of them show the parquet had any problem before it was removed. If the parquet had really arched, I would also expect the plaintiff to have called in the surveyor to survey and record the same. I therefore find that there was no permanent damage to the parquet and no need to have it repaired or replaced. Once it was mopped up, there would be no further problem. Even if there should be some water trapped underneath, it would have been evaporated soon. If there should be any convenience or annoyance resulting from the existence of some moisture underneath the parquet, it can be reflected in the general damages for inconvenience. Furthermore, some of the photographs taken on 21st August also showed an area of the parquet in good and polished conditions. I find that the plaintiff only removed the parquet because she wanted a different type of flooring.

21. The plaintiff has said that a number of fixtures and cabinets had to be dismantled and removed to facilitate the removal of the parquet. As I have found that there was no need to remove the parquet, there was also no need to dismantle and truck away these fixtures and cabinets. I in particular refer to a wooden wardrobe that also served as a partition between the small room and the living room. The few photographs taken on 12th, 23rd, and 29th August showed the wardrobe in good conditions after it had been detached from the wall. I also refer to the photographs taken on 29th August on the wooden bed in the small room and it was also in good condition. There was only a small patch of wetness in the corner that was affixed to the wall. That wetness would not have justified the dismantling and replacement of this bed. It would eventually dry up. Any convenience or annoyance that would have resulted form this patch of wetness can be reflected in the general damages for inconvenience.

22. The plaintiff has also said that many of the fixtures and fittings including the doors and doorframes had to be removed and replaced because of damage due to wetness. I have discarded the plaintiff's evidence which included her evidence on this aspect. There is no other evidence to justify such removal and replacement. The photographs taken by the plaintiff do not advance her case on this. I would therefore disallow the HK$7,500 stated in Lee Tung's quotation for this purpose.

23. I now deal with the quantum for the redecoration. I accept that there was the need to remove and replace the ceiling and wallpapers. Hence, I would allow these items for the master bedroom, the living room and the small room. The respective prices for the wallpapers and ceiling papers in Lee Tung's quotation are: HK$4,608 and HK$1,200 (master bedroom), HK$4,032 and HK$1,200 (small room) and HK$6,980 and HK$3,600 (living room). There is one other charge for HK$2,000 in Lee Tung's quotation for replacing all the electrical switches in the flat and I find that a reasonable item. The total is at HK$23,620. Since I have doubts about the quotation, I am tempted to reduce this sum say by 10%, however, the quantum for wall and ceiling papers are not disputed in so far as they were for the living and small rooms, I therefore refrain from applying any discount. I also note that there is a need to clean up the premises after the works. Lee Tung's quotation stated a sum of HK$1,600. That was for cleaning up after the execution of a lot of works. Since I have found that a smaller amount of work was required, I would only allow HK$1,000 for such purpose. The total sum under this head would be HK$23,620 + HK$1,000 or a total of HK$24,620.

24. I now come to the compensation for the damaged articles including the electrical and electronic appliances. Several items are agreed. They are the fees incurred for checking the electrical and electronic appliances, the washing machine, the kitchen, the electrical circuits and switches of the whole premises and for installing temporary electricity supply in the small room at the respective sums of HK$200, HK$300, HK$300 and HK$3,000. The total is HK$3,800.

25. The defendant also accepted that, save one quartz light, all the lighting for the whole flat had been damaged and become useless. The plaintiff said that she had spent HK$3,250 for the purchase of these lights. She produced an invoice for them. I refer to paragraph 2-041 of McGregor on Damages 17th edition which says that the basic pecuniary loss is the market value of the goods where they have been destroyed or misappropriated. This principle has been accepted by both parties. These lights were bought by the plaintiff in July 1994 and they had been in use for 8 years. There is no evidence of their market value in August, 2002. Doing the best I can, I would allow 50% of their purchase price as their market value in August 2002. I also ignore the fact that there was one quartz lamp which had not been damaged as that was too minimal as a matter of credit to the plaintiff. I would therefore assess the loss for this item at (HK$3,250 x 50%) or HK$1,625.

26. Apart from the above items, all other items of claim are disputed and I will deal with them one by one. The plaintiff says that the washing machine has gone out of order as a result of the seepage. I have already referred to the repair receipt dated 19th August, 2002 issued by Consumer Appliances Service Ltd. It included a customer report saying that the machine could not operate and requested for checking of the on/off switch which was not working and the overheat. The machine was placed against the wall in the middle of the kitchen and right next to the small room. It would have suffered from severe dripping of water. I am not surprised that it would have been damaged by the seepage. On a balance, I find for the plaintiff on the loss of this machine. There might have been a pre-existing problem of overheat before the seepage, hence the customer asked for it to be checked as well. But that does not mean that the machine had not been damaged. Since the plaintiff moved into the premises in 1994 and there is no other evidence to suggest when the machine was purchased, I can only assume that it was purchased sometime in 1994. The plaintiff said that it was purchased at HK$6,500. Given that it is a machine with electrical, electronic and mechanical parts and has been used for 8 years, I would assess its market price at 40% of the purchase price or HK$2,650.

27. The next disputed item is the electric toilet fan. The toilet is also next to the small room and should have been subjected to heavy seepage. On a balance, I find for the plaintiff on this item. It is an electric fan that had been used for 8 years and I would again allow it at 40% of the purchase price or at HK$100.

28. The next disputed item is a sofa in the sitting room. The plaintiff said that it was a leather sofa. There were water stains on it but they were removed by wiping. However, it was full of water. She however agreed that once dried up, it could still be used. I am of the view that a sofa has a lot of absorbent material and it is difficult to have it dried up. Even if it should be dried up, it may still not provide the same cushion effect. I therefore find for the plaintiff on this item. However, I would only allow 30% of its purchase price of HK$2,998 as its market value as it has been used for 8 years and should have been old and scratched. I therefore allow HK$900 for it.

29. The next item is a small electronic organ purchased at HK$1,700. I do not know when it was purchased. It was kept in the small room. The plaintiff said that it was full of water. I do not think I can disagree given the small room being the place that suffered the most from the seepage. The defendant argued that it could be repaired at HK$200. But it was an electronic article and was full of water. I do not think it can be repaired and it was reasonable to throw it away. Doing the best I can, I would allow 50% of its purchase price as these organs have become cheaper and cheaper and with more functions. I would thus allow HK$850 for this item.

30. The next item is a claim for HK$700 being the laundry fees. The defendant agreed with the amount but not the need. I agree that there must be some laundry work for the clothing and bed sheets and the sum does not appear to be excessive. I allow this sum at HK$700.

31. The next items are three mattresses. I have already indicated above that it was not necessary to replace the mattress in the master bedroom. For the two mattresses in the small room, I would allow them not without some reluctance. But as they were in the small room, I think they were likely to have been fully soaked with water. The purchase price for all three mattresses as claimed is HK$1,600 with no apportionment. I would take out HK$600 for the large mattress in the master bedroom and leave HK$1,000 for the two mattresses in the small room. Since they were old mattresses, I would only allow 50% of their purchase price as the market in August, 2002. I would thus allow HK$500 for the two mattresses.

32. The next items are a number of electronic and hi-fi equipments. They are a small television set, a VCD player and a mini audio-visual hi-fi set all in the master bed room, a big television set, a cassette recorder, a radio, a video recorder, a VCD player, an amplifier, a pair of speakers, a pair of rear speakers hung up in the ceiling, a laser disc player and a cordless telephone all in the living room. All these items are said to have been damaged by water. The big television set used to stand on top of a hi-fi cabinet. Some of the hi-fi equipments were placed inside this cabinet. But there was a big opening on the surface of the cabinet behind the television set through which a cable went in to supply electricity to the appliances. The plaintiff said that water went in through this hole and damaged the appliances therein. I have every reason to believe that all these appliances, whether they were inside the cabinet or exposed, were connected to live electricity supply. Once water should get into them, they would be damaged instantly. On a balance, I would find for the plaintiff that these equipments had been damaged by water and were beyond repair. I make this finding despite the plaintiff has failed to answer the counter-notice and did not call the maker of the receipt issued by Po Shing Television Engineering Co who had checked these appliances. Unlike the case of Lee Tung, this person had only charged HK$200 for the work and might not have been willing to come. I find that it was more likely than not that the appliances had been damaged by the seepage. However, I would only allow 50% of their alleged purchase prices as their market prices on an overall basis as they were all old items. The amounts I would allow for these items are (HK$1,200 + HK$500 + HK$1,500 + 6,500 + HK$2,000 + HK$1,300 + HK$4,500 + HK$3,000 + HK$6,000 + HK$3,800 + HK$1,200 + HK$5,000 + HK$165) x 50% or a net sum of HK$18,332.50.

33. I would however say that the purchase prices for some of the electronic appliances and equipments appear to be on the high side. The plaintiff has failed to produce any receipt or invoice as proof and I think it is a little amazing that she could have remembered the prices so well. Furthermore, television, hi-fi and audio-visual equipments have become cheaper these days because of competition by the products made in the Mainland. The market prices for these equipments would necessarily have gone down as well. I therefore feel that despite the discount I have applied, this award may still be on the generous side. But the plaintiff did not come into this situation by choice and I am prepared to be slightly generous to her.

34. I now come to the removal costs and the rental for the alternative premises. Since I have found that it was only necessary to replace the wallpapers and ceiling papers, I therefore do not find that the plaintiff's family would have to move out for as long as 1 and 1/2 months. I am of the opinion that a period of about 1/2 a month to 20 days would be adequate for the removal of the old papers; the preparation of the wall and ceiling into a condition suitable for pasting the new papers and the pasting of the new papers. After all, the flat's net usable area is only 390 odd square feet and the amount of work would not have been very substantial. However, I doubt if any landlord would be prepared to let out a flat for only 1/2 a month or 20 days, I would therefore allow one month rental at HK$5,000 even though the plaintiff's family would not have to live in the alternative accommodation for a month. On the removal costs, I think the sum of HK$3,300 for moving out and back is reasonable and it is also undisputed. I would allow it.

35. The last item is the general damages. In the case of Chan Fei Lung v. Mansion Products Ltd. & Ors [1990] 1 HKC 504, the plaintiff owned and lived in a detached house in Kowloon. When the defendant developed the neighbouring land in December, 1988, it caused the plaintiff's boundary wall to collapse which severely damaged the surrounding area comprising the yard, the kitchen, the washing and drying areas in the plaintiff's house. The repair works, though carried out expeditiously, took about 3 months. Master Perrior accepted that the plaintiff had a great concern for his loss of security after the collapse of the wall. He also accepted that the plaintiff had suffered hardship for a number of days when there was no bathing or sanitary facilities. He also found that there was inconvenience for the plaintiff as he had to eat out on a number of days. The plaintiff's family including her mother of 100 years old also had to endure the inconvenience of workmen, dust and rubble for some two months. Master Perrior on 2nd July, 1990 awarded HK$25,000 as general damages for the nuisance.

36. In John So and Another v. Lau Hon Man and Others [1993] 2 HKC 356, the defendants' flat was immediately above the plaintiffs'. There was a fresh water pipe embedded in the concrete slab that was the defendants' floor as well as the plaintiffs' ceiling. This pipe served the defendants' flat exclusively. This pipe was leaky since the end of February, 1992 when the plaintiffs noticed water permeating their ceiling. They complained to the management and the 1st defendant visited the plaintiffs' flat on 3rd March. He could see water coming through the plaintiffs' ceiling but could not see anything from his flat as the leaky pipe was inside his floor slab. Despite continuing complaints from the plaintiffs, the defendants did nothing until 23rd March when he engaged a plumber to inspect the plaintiffs' flat. The defendants still did nothing until the pipe burst in the night of 7th or 8th April. The amount of flow water greatly increased upon the burst and the defendants also felt the wetness spreading in their flat. The 1st defendant brought in two plumbers on 13th April and one of them started working on 17th April. The remedial work was completed on 21st April. The Court took into account that the plaintiffs had suffered the inconvenience of relatively minor penetration of dampness from the end of February to about 7th April and then continuous dripping from then up to 17th April. The plaintiffs' dinning area, bedrooms and bathrooms were affected. As a result of the leakage, the plaintiffs' dinning room and lounge had to be completely repapered. Replastering had to be done to some walls, some rewiring was necessary and some tiles had to be replaced. Some doors and frames also required attention. Repainting of various part and revanishing of floors was required. The carrying out of the works and cleaning up took some 24 days. The plaintiffs were thus discommoded one way or another from about the end of February up to about 17th April and 24 days for repair and cleaning. The total period was about 2 and 1/2 months. The Court of Appeal awarded HK$10,000 as general damages for the nuisance and inconvenience.

37. In Leung Yung Chun & Another v. Chan Wing Sang & Others [2000] 1 HKLRD456, the plaintiffs' flat was underneath the defendants'. The 1st defendant constructed a washbasin and a toilet illegally in one of the bedrooms. In July, 1995, there was water dripping from the ceiling of the plaintiffs' flat. The 1st defendant upon complaint promised to rectify the problem and the problem stopped. In July 1996, there were leakages in four areas of the plaintiffs' flat; namely two areas in one bedroom, one area in the corridor and one area in another bedroom which was also used as a study. The leakage in the first bedroom was very serious and two bottles of water were collected every day. The plaintiffs had to move the lighting switch away from the dripping area. The plaintiffs' three daughters used to live in this room. They could not switch on the air-conditioner because of the dripping. The carpets were made wet. The closet in this room also could not be used. Regarding the corridor, the space above the false ceiling had extensive water staining across the whole corridor and stalactites were formed in the original ceiling. In the other bedroom, the damp area measured 1 metre along on one wall, 0.8 meter long on another wall and 0.2 metre down from the ceiling. A make shift system was devised to collect and soak up the water. Plastic buckets were used to collect the water. Despite repeated complaints, the 1st defendant did not cooperate and the problem persisted until March 1998 when a new owner of the defendants' flat rectified it. Various renovation works were required to restore the plaintiffs' flat. They covered the areas of leakage in the various rooms. They were the need to repair the wall, to apply new wallpapers to the ceiling and walls affected by the leakage, to replace the carpets, to repair the door and frame and full height cupboard in the first bedroom which were seriously damaged by the leakage. The plaintiffs were so embarrassed by the conditions in their flat that they did not even invite guests into their flat when two of their two daughters got married. Cheung, J. was of the view that the 1st defendant had taken an unreasonable attitude which prevented an early solution to the problem and the plaintiffs had to endure the leakage for nearly two years. He awarded HK$80,000 as damages for inconvenience.

38. When compared with the above three cases, the inconvenience suffered by the plaintiff and her family in this case is less severe. The defendant herein also adopted a reasonable attitude. When the leakage occurred on 12th August, they cooperated with the management in the investigation for the cause. When advised that the cause of leakage could be from her flat, she called in her own contractor on the 13th and, upon suggestion of her own contractor, rectified the problem on the 14th. Since then, there was no more complaint about leakage.

39. The duration of the problem was much shorter in the present case. Since the plaintiff's family had moved out from their flat as soon as they discovered the leakage and had the use of an alternative flat in nearby Fanling, they therefore did not have to endure the workmen, the dust and all inconvenience associated with decoration works. They also did not have to live in an environment of dripping water. No doubt, they had to undertake the removal to a new place and back and suffer the inconvenience of a new residence and living environment. The problem of adjusting to the new environment might have been aggravated by the fact that the children had to start their new school term in the middle of this interval. However, if they only moved out to make way for the works on the wall and ceiling papers and the electrical switches, they could have returned after 20 days. Apart from the inconvenience of removal and adjustment to new environment, I also take into account of the fact that the plaintiff herself had spent a lot of time and effort to mop up and clean the fixtures and fittings, the parquet and the whole flat, to sort out the wet things and to clean them up, to take the wet clothing and bed sheets to the laundry, to arrange for the checking of various articles in the flat, to arrange for redecoration work, to come home to inspect the conditions of the flat and the progress of the work every day.

40. Counsel for the defendant suggested that the general damages for inconvenience should be at HK$5,000, which is half of that awarded in the case of John So. Counsel for the plaintiff however asked for HK$25,000 which would include the rental for the alternative accommodation. Having considered the three cases cited above the facts of this case, I am of the view that a sum of HK$12,000 is sufficient for this head of damages. This sum is in addition to the rental for the alternative accommodation and removal costs.

41. I also refer to the claim for surveyor's fees. That should form part of the legal costs for the conduct of the action. I will not make a separate award for it.

42. The total damages are: HK$24,620 + HK$3,800 + HK$1,625 + HK$2,650 + HK$100 + HK$900 + HK$850 + HK$700 + HK$18,332.50 + HK$5,000 + HK$3,300 + HK$12,000 = HK$73,877.50. I also order that this sum should carry interest at the judgment rate from the date of the writ to the date hereof and until payment. I further make a costs order nisi that the defendant do pay the plaintiff the costs of this action with certificate for counsel.