CHUNG YOON BAE v. REHMAN ATEEQ UR

DCCJ 3078/2011

[2018] HKDC 403

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3078 OF 2011

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is the assessment of damages in a water seepage case.  At all material times, the plaintiff was and is the registered owner and occupier of Flat B on 7th Floor, Harilela Mansion, No 81 Nathan Road, Kowloon, Hong Kong (“7B”). The defendant was and is the registered owner of Flat B on 8th Floor, Harilela Mansion (“8B”).

2.  From mid-2008 to July or August 2008, the end of 2008 to November or December 2010 and early 2011 to 2012, there were water seepage problems in 7B.  The plaintiff claimed that the water seepage was from 8B and the defendant should be responsible for these.

3.  On 11 August 2011, the plaintiff commenced these proceedings against the defendant for (a) nuisance; (b) negligence; (c) the principle of Rylands v Fletcher; and (iv) breach of the relevant deed of mutual covenant.

4.  On 11 November 2011, judgment on liability (“the Judgment on Liability”) was entered against the defendant.

5.  Subsequently, the plaintiff has filed his list of documents, witness statement, and expert reports for the assessment of damages.  The defendant has failed to comply with the directions given by the court in relation to the filing of list of documents, witness statement and expert evidence, and therefore was debarred from adducing any evidence in the assessment of damages.

6.  The plaintiff has produced 2 expert reports made by Mr Cheung Wai Sum Simon (“the Expert”) dated 20 August 2012 (“the 1^st Report”) and 10 July 2014 (“the 2^nd Report”) respectively in support of his case. Previously, the court has made an order directing that the Expert should attend the assessment hearing for cross-examination by the defendant.  At the beginning of the assessment hearing, I asked Mr Rowan Hunter, counsel for the defendant, whether cross-examination of the Expert was necessary.  Mr Hunter replied and said that he had no insistence on having cross-examination of the Expert.  With the parties’ consent, I directed that the 2 expert reports be read as evidence in the assessment hearing and there would be no need for Expert to attend the hearing to give oral evidence.

The parties’ respective cases

7.  The plaintiff claims that as a result of the water seepage problems, the plaintiff has suffered some pecuniary loss.  The parties’ respective positions in respect of the pecuniary loss claimed by the plaintiff are summarized in the table below:-

	Item	Plaintiff’s claim	Defendant’s position
	Renovation Expenses
1.	Removal of defective items and dumping cost	HKD 60,000	Should be HKD 20,000
2.	Removal of defective wallpapers (4 bedrooms, living and dining room including the ceilings)	HKD 32,000	The total under this head and under item 4 below should be HKD 40,000
3.	Pest control and deodorization	HKD 22,000	Not disputed
4.	Replacement of wallpapers (4 bedrooms, living and dining room including the ceilings) (including new wallpapers)	HKD 90,000	See item 2 above
5.	Replacement of surfaces of the ceilings, including the light trough	HKD 60,000	Should be HKD 30,000
6.	Follow up the power supply, replacement of burnt wires and sockets (to be inserted in rubber hoses and embedded into walls)	HKD 130,000	Disputed
7.	Replacement of wooden floor (including labour and materials)	HKD 122,000	Should be HKD50,000
8.	Replacement of 6 split-type air conditioners	HKD 75,500	Disputed
9.	1 set of sliding glass door at master bedroom	HKD 50,000	Disputed
10.	Furniture (newly made: 2 desks, 2 bookshelves, 1 double bed and 1 single bed)	HKD 61,000	Disputed
11.	2 crystal hanging lightings	HKD 80,000	Disputed
12.	Bathroom door and 1 set of cabinet	HKD 12,000	Disputed
13.	Water proofing construction for the ceilings	HKD 50,000	Should be HKD12,000
14.	Third party insurance	HKD 4,800	Not disputed
	Subtotal	HKD849,300	HKD178,800
	Expenses in relation to alternative accommodation
15.	Moving and storage cost from 8 October 2012 to 7 November 2012	HKD 5,250	Disputed
16.	Moving and storage cost from 8 November 2012 to 9 May 2013	HKD 12,850	Disputed
17.	Rentals for alternative accommodation Monthly rental of HKD 35,000 x 9 months (from August 2012 to May 2013)	HKD 315,000	Disputed
	Subtotal	HKD 333,100	Nil
	Total:	HKD 1,182,400	HKD178,800

8.  The plaintiff further claims a non-pecuniary loss in the sum of HKD 100,000.  The basis of this claim is the distress, discomfort and inconvenience suffered by the plaintiff as a result of the water seepage problems.  This item is not disputed by the defendant.

9.  Given that this court has limited jurisdiction, Mr Ryan Law, counsel for the plaintiff, submits that the plaintiff is prepared to waive any sum in excess of HKD 1,000,000.

The principles

10.  The principles below are trite and not in dispute:-

(a)  In a case of nuisance which causes physical damage to the land, the damages could be measured by the cost of replacement/reinstatement or the cost of abating the nuisance[1].

(b)  Apart from the physical damage to the land a nuisance may cause, there can also be damages for the annoyance, inconvenience, discomfort, or even illness to the claimant. Recovery in respect of these principally non-pecuniary losses is allowable and can be regarded as part of the normal measure of damages[2].

(c)  Rules of the District Court, Order 37 rule 6 provides:-

“Where damages are to be assessed (whether under this Order or otherwise) in respect of any continuing cause of action, they shall be assessed down to the time of the assessment.”

(d)  A claim of nuisance is a continuing cause of action and by virtue of Order 37 rule 6, the damages could be assessed from the date of the nuisance occurred down to the date of the assessment[3].

11.  The issue before the court is applying these principles to the facts as found by this court, what should be the appropriate quantum of damages.

The evidence

12.  The plaintiff himself has given evidence in the assessment hearing.  The gist of his evidence is as follows:-

(a)  Since mid-2008, water seepage problems were found in 7B, which continued throughout 2008 until July or August 2008.  The water seepage problems happened again in the end of 2008 and until November or December 2010.  The water leakage problems resurfaced in early 2011 and continue.

(b)  Since about May 2012, the defendant had carried out decoration works in 8B.

(c)  Since about June or July 2012, the water seepage has appeared again and continues.  The plaintiff’s solicitors wrote to the defendant, inviting him to conduct joint inspection of 7B and 8B by professional building surveyor(s). However, the defendant has not given any reply.

(d)  On 20 July 2012, 24 July 2012 and 9 August 2012, the Expert inspected 7B and 8B.

(e)  The plaintiff has also lodged complaints with the Building Department (“BD”) and the Food and Environmental Hygiene Department (“FEHD”).  BD and FEHD have jointly carried out inspection at D’s Unit and identified the water supply pipes serving D’s Unit were defective and were the cause of the water seepage problems.  The departments also referred the case to the Water Supplies Department (“WSD”), which requested the defendant to fix the water supply system to solve the water seepage problem.

(f)  Despite the repeated requests by the various government departments, the defendant failed to take any remedial action or stop the water seepage problems.

(g)  On 9 August 2012, there was a crack in the water supply system of 8B, which caused water seepage to other areas of 7B.  The defendant took no action to remedy the situation.  The water seepage was recorded in the 2 expert reports.

(h)  At a time between 13 and 15 August 2012, there was a big burst in the water supply pipes serving 8B and water flooded into 7B (“the Water Flooding Incident”).  The WSD sent staff to visit 8B and 7B.  On or about 15 August 2012, the WSD shut down the water supply to 8B and the situation was improved.  However, two or three days later, the defendant re-opened the water supply without the permission of the WSD.  7B was flooded again.

(i)  On about 29 August 2012, the WSD cut the water supply to 8B and the situation was improved.

(j)  The Water Flooding Incident therefore lasted from 13 August to 15 August, and from 17 (or 18) August to 29 August 2012, about 14 days.

(k)  As a result of all these problems, the plaintiff has suffered the pecuniary loss as set out in paragraph 7 above.  The plaintiff has to find alternative accommodation, and hence the expenses in items 15, 16 and 17 in paragraph 7 above are incurred.  During the 9-month period, the plaintiff has repaired and renovated 7B.

13.  Based upon the inspections on 20 July 2012, 24 July 2012 and 9 August 2012, the Expert is of the opinion that there were water leakages from 8B to the living room and a bedroom in 7B.  Details of the findings are shown in the plan (“Plan 1”) annexed to the 1^st Report and the plan (“Plan 2”) annexed to the 2^nd Report, copies of which are annexed hereto for the ease of reference.  The differences between the 2 plans are as follows:-

(a)  Plan 1 showing that 7B has 2 bedrooms and a balcony;

(b)  Plan 2 showing that 7B has 4 bedrooms and no balcony.

14.  In the 2^nd Report, the Expert gives an opinion that the reasonable amount of the costs of the remedial works carried out by the plaintiff would be about HKD 823,900.

Analysis

15.  Mr Hunter accepts that the defendant is liable to the plaintiff in respect of the water seepage problems, including the Water Flooding Incident. However, Mr Hunter submits that the plaintiff has exaggerated the damage caused by the water seepage problems.  Mr Hunter submits that the seriousness of the damage as mentioned by the plaintiff in his evidence is not supported by the expert’s evidence.  According to the expert’s findings (including the photos produced in the expert reports), there were water seepages in the living room and in one bedroom in 7B.  There is no justification to renovate the whole unit as a result of these.  Further, in the light of the findings in the expert’s reports, although the water seepage has caused some damage to 7B, the condition was not so worse and the condition of 7B was not uninhabitable.  Accordingly, it is unreasonable for the plaintiff to claim expenses in relation to alternative accommodation. 

16.  With respect to Mr Hunter, the flaw in his submissions is overlooking the Water Flooding Incident.  There is no dispute that the Water Flooding Incident has occurred and the defendant is liable to the plaintiff in respect of this.  No doubt, the Water Flooding Incident would have caused further damage to 7B.  Bearing in mind the nature of the Water Flooding Incident, the further damage caused by the Water Flooding Incident would certainly be serious.  The Water Flooding Incident is an event subsequent to the inspections conducted by the Expert.  Naturally, the damage caused to 7B by the Water Flooding Incident would not be recorded in the expert reports.  Accordingly, there is no merit in Mr Hunter’s submission that the plaintiff’s evidence is not supported by the expert’s reports.  In my view, the plaintiff’s evidence is supported by the undisputed fact that the Water Flooding Incident as mentioned by the plaintiff did occur and the defendant is liable to the plaintiff in respect of this.

17.  Another point taken by Mr Hunter is that as shown in Plan 1, there are only 2 bedrooms in 7B, not 4 bedrooms as claimed by the plaintiff.  Mr Hunter submits that since the Expert is a professional with access to 7B on 3 occasions, it is unlikely that the Expert would have made a mistake in preparing Plan 1.  Mr Hunter suggests that in fact originally there were only 2 bedrooms in 7B.  The plaintiff took the renovation as a result of the water seepage problems as an opportunity to build 2 more bedrooms in the unit.  This would have an effect on the quantity of wallpaper used and the costs of labour for which the defendant should not be liable.

18.  I am unable to accept these submissions.

(a)  The Expert has not only produced Plan 1, but has also produced Plan 2. As to why Plan 1 is different from Plan 2, no answer can be found in the expert’s reports.

(b)  Under cross-examination, the plaintiff said that there were 4 bedrooms in 7B at all times.

(c)  The plaintiff’s evidence is support by a written quotation issued by a renovation company on 20 September 2012.  One of the items on the quotation is removal of the old wall papers (4 rooms, 2 living/dining rooms, including the ceiling).

(d)  The plaintiff’s evidence is also supported by Plan 2.

(e)  Taking all the aforesaid into account, it is questionable whether Plan 1 is entirely correct.

(f)  Further, the point taken by Mr Hunter in the final submissions in fact should be raised at the beginning of the assessment exercise.  Had Mr Hunter raised the point at the beginning, I would have had required the Expert to attend the hearing to give oral evidence on this point.  But Mr Hunter has only raised this point in the final submissions.  That makes the Expert has no chance to give any explanation, and Mr Law has no opportunity to seek clarification from the Expert.  In my view, as a matter of fairness, it would not be right to attach significance to Plan 1 in these circumstances.

(g)  Further, it has not been put or suggested to the plaintiff that he took the renovation as a result of the water seepage problems as an opportunity to build 2 more bedrooms in the unit, and the plaintiff has not been given an opportunity to response to this suggestion.  That being the case, it would not be fair to use this suggestion as a basis to make a finding against the plaintiff.

(h)  For the reasons above, in my judgment, little weight can be given to Plan 1.

19.  I am of the view that the plaintiff is a candid and straightforward witness.  His evidence is also supported by the documents produced by him. Notwithstanding the cross-examination conducted by and the submissions made by Mr Hunter, I am of the view that the plaintiff’s evidence is reliable.  I accept his evidence.

20.  Save an except the accuracy of Plan 1, I also accept the expert’s evidence given in the 1^st Report.  In respect of the estimation of the remedial costs in the 2^nd Report, the Expert has not provided the data or information which forms the basis of his valuation in the report.  Without knowing these data or information, one would not be able to examine whether his estimation is on a sound basis or not. Accordingly, the 2^nd Report is of limited use.  I would not attach much weight to the 2^nd Report.

21.  In respect of the pecuniary loss, I am satisfied that the renovation expenses as claimed under items 1 to 14 in paragraph 7 above are expenses incurred as a result of the water seepage problems, in respect of which the defendant is liable to the plaintiff.  I allow these items in full.

22.  Mr Law submits that the total of items 1 to 14 in paragraph 7 above is HKD 849,300, which is close to the figure estimated by the Expert in the 2^nd Report, ie HKD 823,900, and hence the plaintiff’s claim is reasonable.  As said in the above, the 2^nd Report is of limited use and hence Mr Law may not be able to derive assistance from the 2^nd Report.  However, I have found that the plaintiff did incur these expenses as a result of the water seepage problems caused by the defendant.  That would be sufficient for awarding these sums to the plaintiff.

23.  I am also satisfied that the expenses in relation to alternative accommodation as claimed under items 15, 16 and 17 in paragraph 7 above are reasonable.  The alternative accommodation is from mid-August 2012 to mid-May 2013.  Given the occurrence of the Water Flooding Incident in mid-August 2012 and the extent of the damage caused to 7B by the water seepage problems (including the Water Flooding Incident), I am of the view that the alternative accommodation for 9 months is necessary.  I allow these items.

24.  In respect of the non-pecuniary loss of HKD100,000 claimed by the plaintiff, the defendant does not dispute this.  I allow this claim.

25.  The total of the damages therefore would be HKD 1,182,400 + HKD 100,000 = HKD 1,282,400.  Since this court at most can only award HKD 1,000,000 to the plaintiff, I would make an order that the defendant do pay damages in the sum of HKD 1,000,000 to the plaintiff.  There should also be interest on the award at 1% above the best lending rate of HSBC from the date of writ until the date of this judgment, and thereafter at the judgment rate until full payment of the judgment sum.

26.  The normal rule is costs following the event.  I would therefore make a costs order nisi that save and except the costs covered by the Judgment on Liability, costs of these proceedings (including all costs reserved, if any) be to the plaintiff, with a certificate for counsel, to be taxed if not agreed.

Conclusion

27.  I make the order as set out in paragraphs 25 and 26 above.

28.  Lastly, it remains for me to thank Mr Law and Mr Hunter for their helpful submissions.