LEE TSZ YEUNG AND ANOTHER v. HO CHUNG YAN JOANNE

DCCJ 179/2022

[2024] HKDC 998

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 179 OF 2022

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BETWEEN

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is an assessment of damages of a water seepage case.

2.  At all material times, the 1^st Plaintiff is and was the registered owner of Flat No 5, 3/F, Block A Lung Poon Court, 8 Lung Poon Street, Kowloon (the “Property”). The 1^st and 2^nd Plaintiffs (collectively referred to as the “Plaintiffs”) are and were the occupiers of P’s Property. The Defendant is and was the registered owner of Flat No 5, 4/F, Block A Lung Poon Court, 8 Lung Poon Street, Kowloon (“D’s Property”), the flat directly above the Property.

3.  On 13 January 2022, the Plaintiffs commenced the present action against the Defendant for nuisance, negligence, and breach of statutory duty and the relevant deed of mutual covenant.

4.  On 16 September 2022, upon the default of the Defendant in serving the defence, interlocutory judgment was entered into against the Defendant with damages to be assessed.

Procedural Background

5.  On 2 December 2022, the Plaintiffs issued a Notice of Appointment of Assessment of Hearing of Damages. The Plaintiffs have filed their list of documents, witness statement, and an expert report on quantum of damages. On the other hand, the Defendant has failed to comply with directions given by the Court and was therefore debarred from calling any witnesses at the assessment hearing.

6.  At the hearing of assessment of damages, the Defendant was not represented and was absent at the hearing.

7.  The Plaintiffs’ solicitors have filed an affirmation of service, stating that the Order dated 17 October 2023 setting out the date and time of the assessment hearing, the hearing bundle, and the Plaintiffs’ written submissions and list of authorities had all been served on the Defendant.

8.  I am satisfied that, the Defendant had been properly notified of the hearing. Upon the Plaintiffs’ application pursuant to Order 35, rule 1(2) of the Rules of the District Court, Cap 336H, I proceed with the hearing in the absence of the Defendant.

The Plaintiffs’ Case

9.  Madam Au Pui Kei, the 2^nd Plaintiff gave evidence at the hearing of assessment of damages. She adopted her witness statement filed on 12 June 2023 as her evidence-in-chief. The gist of her evidence is as follows.

10.  The 1^st Plaintiff purchased the Property in around May 2020 and has since lived there with the 2^nd Plaintiff. After the purchase, the Plaintiffs refurbished the Property. During which, the Plaintiffs discovered signs water seepage at the ceiling of the balcony and the wall of the kitchen of the Property.

11.  The water seepage problem deteriorated. On around 22 August 2020, the Plaintiffs reported the water seepage problem to the management office of Lung Poon Court (the “Management Office”). The staff of the Management Office inspected the Property and tried to contact the Defendant but in vain.

12.  On around 6 September 2020, the Management Office referred the complaint to Building Departments/Food and Environmental Hygiene Department Kowloon Regional Joint Office (the “Joint Office”).

13.  In October 2021, the Plaintiffs instructed Ms Lau, to investigate the source of the water seepage. Ms Lau conducted inspection at the Property and prepared a water seepage investigation report dated 19 November 2021 (the “Investigation Report”). The result of the Investigation Report is that, there were signs of water seepage at the Property which related to the water seepage from the waterproofing layer of bathroom walls and from the drainage pipes at the bathroom of D’s Property.

14.  On 3 December 2021, the Plaintiffs’ solicitors issued a letter to the Defendant attaching the Investigation Report, asking her to take measures to stop the water seepage and to seek damages caused by the water seepage (the “Demand Letter”).

15.  In February 2023, the Joint Office issued a nuisance notice to the owners of D’s Property (the “Nuisance Notice”) stating that there is water seepage from D’s Property that led to an existence of a nuisance and requiring the owners of D’s Property to abate the nuisance.

16.  Despite the Nuisance Notice and the Demand Letter, the Defendant failed to rectify the problem. The water seepage persisted and deteriorated, and extended to the ceiling of the bathroom and the ceiling of the kitchen of the Property. As a result, the Plaintiffs suffered loss and damages.

17.  Under the Order dated 14 March 2023, the Plaintiffs have leave to adduce expert evidence on (a) the extent of damage caused to the Property, (b) the repair works that are needed to be done to repair the said damage, and (c) the number of days required and the estimated costs of the said repair works. Pursuant to court directions, the Plaintiffs have produced an expert report made by Ms Lau Shan La (“Ms Lau”) dated 10 November 2022 (the “Expert Report”)

18.  At the hearing, Ms Cheng appearing for the Plaintiffs indicated that, it would not be necessary to hear oral evidence from Ms Lau. Therefore, I gave leave to have the Expert Report adduced as evidence without having to call the maker thereof.

19.  The Expert Report sets out the extent of water seepage as at 13 October 2022, the date of inspection by Ms Lau, which is summarised as follows:-

(1) The ceiling of the balcony, bathroom and kitchen showed water stains, with paint of the ceiling peeled off and pulverised.

(2) There were rust stains and cracks found on the ceiling of the balcony and the false ceiling of the bathroom.

(3) The cabinet in the bathroom became mouldy and turned black.

20.  The evidence of Ms Au as summarised in the above and that of Ms Lau contained in the Expert Report are unchallenged. The photos of the affected areas that were taken during the inspection are also produced as attachments to the Expert Report. Their evidence is inherently consistent and corroborate with each other.

21.  Therefore, I accept both the evidence of Ms Au and that of Ms Lau in the Expert Report which shows the extent of damage at the Property as a result of the water seepage caused by the Defendant.

The Plaintiffs’ Claim

22.  As pleaded in the Statement of Claim and submitted in their opening submissions, the Plaintiffs claims the following heads of damages:-

(1) Costs of repair and cleaning works

(2) Costs for alternative accommodation

(3) Damages for distress, discomfort and inconvenience

23.  The legal principles applicable are well established and should not be of dispute:-

(1) In a case of nuisance where physical damage is caused to the land, the damages could be measured by the cost of replacement/reinstatement or the cost of abating the nuisance. (McGregor on Damages, 21^st Edition at §39-017 at [1249])

(2) There could 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 in cases where the claimant has been disturbed in the occupation of their home. (McGregor on Damages at §39-020 at [1251])

(3) A claim of nuisance is a continuing cause of action and by virtue of Order 37 rule 6 of the Rules of District Court, Cap. 336H, damages could be assessed from the date of the nuisance occurred down to the date of the assessment.

24.  Bearing those principles in mind, I proceed to assess damages under each head as claimed by the Plaintiffs.

(1) Costs of Repair and Cleaning Works

25.  Damages for costs of repair are generally recoverable for the physical damage caused to the Property. In the present case, the Plaintiffs claims damages for (a) the estimated costs to repair the damaged areas at the Property and (b) costs for cleaning up after the repair.

26.  For costs for repair works, the Plaintiffs rely on the Report which estimated costs for repairing the damage in the Property to be at HK$27,133.20. The estimated costs included that of redoing and repainting all the ceiling of the affected areas and that of replacing the cabinet and false ceiling of the bathroom. The estimated costs also included applying a protective layer to the premises before the repair works and cleaning up afterwards.

27.  I find the estimated costs for repair works of HK$27,133.20 is reasonable, especially given the extent of damage in the bathroom and the balcony. I allow the sum in full.

28.  As for costs for cleaning, the Plaintiffs further claim HK$1,600, which is 8 hours of work by a cleaning worker with an hourly rate of HK$200.

29.  In that regard, I have asked Ms Au at the hearing, whether the estimated costs for repair already included that of cleaning up the premises post-repair. She explained that she would need to conduct further cleaning after the repair as the dust from the repair would go to the other rooms of the Property.

30.  Despite Ms Au’s explanation, I am of the view that the estimated costs under the Expert Report has already included that for cleaning up the Property after the repair as deemed necessary by Ms Lau. It would not be appropriate to allow a further sum for cleaning works.

31.  Therefore, I award the sum of HK$27,133.20 to the Plaintiffs under this head.

(2) Alternative Accommodation

32.  Costs of alternative accommodation are generally recoverable at law. (See Chan Albert Koon Keung and Ors v Yee Yun Tung [2020] HKDC 1201 at §21)

33.  The Plaintiffs claim that, they would need a twin room to accommodate 2 people for 7 days. In the witness statement of the 2^nd Plaintiff, she produced the search results of an online enquiry of hotel rates in the area of the Property. She stated that the average price of a room per night would be around HK$800 in June 2023.

34.  From the online search results produced, I note that the hotel rates quoted range from HK$ 371 to HK$ 1,036 per day. I accept the daily rate of HK$800 for alternative accommodation to be reasonable taking into account the fact that hotel rates fluctuate.

35.  As for the period for alternative accommodation, the Expert Report estimated 5 days to complete the repair works. I find that estimated length of period to be reasonable, especially given that the damage at the Property is not at the living room and the bedroom of the Property.

36.  As such, I allow HK$4,000 (HK$800 x 5 days) under this head.

(3) Damages for Distress, Discomfort and Inconvenience

37.  Ms Cheng for the Plaintiffs submits that, this head of damages is generally recoverable in law. There is no scientific way of translating inconvenience and discomfort into a sum of money, but instead a conventional sum would be award, relying on John So and Anor v Lau Hon Man and Ors [1993] HKC 356 at 358I and 359G.

38.  In this regard, Ms Au’s evidence is that: -

(1) Since August 2020 up to the date of hearing, the water seepage problem has persisted for around 3 years and 4 months.

(2) The Plaintiffs were required to clean the Property on a daily basis as paint and powder ashes that peeled off from the ceiling fell on the door frames and on the floor.

(3) The Plaintiffs had to cover the ceiling of the balcony and door of the common pipe room with plastic sheets to protect the fixtures, their furniture and personal belongings. Many of those household items had to be removed from the bathroom and kitchen and moved to other areas in the premises.

(4) The Plaintiffs were worried of increasing risks of concrete falling and electricity hazards due to the water seepage problem.

(5) There was a mouldy smell at the Property due to the prolonged water seepage problem.

39.  Ms Cheng submits that HK$80,000 is a reasonable sum to be granted under this head and has referred this Court to the two cases:-

(1) Choi Man Wing and Anor v Wong Tang Hoi Alice [2018] HKDC 901

(2) Leung Yung Chun and Anor v Chan Wing Sang and Ors [2000] 1 HKLRD 456

40.  Having considered Ms Au’s evidence, in particular the duration and the severity of the water seepage in the present case, I accept Ms Cheng’s submissions and I find that HK$80,000 is an appropriate amount to be awarded under this head.

Conclusion

41.  Accordingly, I assess the damages and award the total sum of HK$ 111,133.20 to the Plaintiffs.

42.  I also find that, the Plaintiffs are entitled to interest on the sum awarded at 1% above the best lending rate of HSBC from the date of writ to the date of this judgment, and thereafter at judgment rate until payment in full.

43.  I see no reason why costs should not follow the event. I order that the Plaintiffs do have costs of the assessment, to be taxed if not agreed.