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DCCJ 1184/2020
[2022] HKDC 856
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 1184 OF 2020
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| BETWEEN |
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WEN SHEK TUN |
1st Plaintiff |
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WEN PING KUEN DAVID |
2nd Plaintiff |
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and
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CHAN WAI FONG |
1st Defendant |
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NG CHUN SHING |
2nd Defendant |
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Before: Master Maurice Lam in Court (Open to Public)
Date of Hearing: 9 August 2022
Date of Assessment of Damages: 16 August 2022
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ASSESSMENT OF DAMAGES
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INTRODUCTION
1. This is an assessment of damages in a water leakage case. On 2 September 2020, the 1st and 2nd plaintiffs (collectively “the Plaintiffs”) obtained an interlocutory judgment[1] against the 1st and 2nd defendants (collectively “the Defendants”) with damages to be assessed. The present assessment of damages is held in pursuance of the said interlocutory judgment.
2. It is noted that, in addition to the said interlocutory judgment, the Plaintiffs also obtained an injunction against the Defendants compelling them to take all reasonable steps, preventive measures or precaution to halt or stop water and/or liquid from leaking, dripping, percolating and/or seeping from the Defendants’ premises to the Plaintiffs’ premises[2].
3. The Plaintiffs commenced the present proceedings against the Defendants on 20 March 2020. The action is based on (1) negligence, (2) trespass and/or nuisance, (3) the rule under Rylands v Fletcher[3]. According to the Statement of Claim, the Plaintiffs claimed damages under the heads of (1) costs of reinstatement and/or redecoration works, (2) general damages for discomfort and inconvenience, (3) costs for repairing and/or replacing fixture, chattels, furniture or personal properties, (4) temporary repair works, (4) loss of rental income between July 2019 and January 2020, (5) the decrease in rental value since January 2020, and (6) surveying and professional fees[4].
4. At the assessment hearing, the Plaintiffs were represented by Ms Katrina Lee of counsel. The Defendants, who are not legally represented, did not attend the hearing. Upon perusing the 5th Affirmation of Kung Chi Wah filed herein on 8 August 2022, I was satisfied that the Defendants have been duly notified of the present assessment of damages, as well as this assessment hearing. Accordingly, I decided to proceed with the hearing in the Defendants’ absence.
5. At the conclusion of the hearing, I indicated that a written decision would be handed down on 16 August 2022. This is my decision.
ANALYSIS OF EVIDENCE
6. At the assessment hearing, Ms Lee called Mr Paul Wen (“hereinafter “Mr Wen”) as the Plaintiffs’ factual witness. Mr Wen is the son of the 1st plaintiff and the younger brother of the 2nd plaintiff. He adopted his witness statement filed on 16 August 2021 as examination in chief. He also answered questions raised by me at the hearing. His evidence was unchallenged. On the whole, I find nothing inherently improbable about his evidence. I accept his evidence to be truthful and reasonable.
7. In this assessment of damages, the Plaintiffs intend to rely on two expert reports prepared by Ms Lau Shan La of Hong Kong Survey Limited dated 11 December 2019[5] and 8 December 2021[6] respectively. However, only the 2nd report was allowed to be adduced as evidence in chief without calling the marker thereof in pursuance of my order 28 January 2022[7]. While 1st report was disclosed in the Plaintiffs’ List of Documents, no leave was granted to the Plaintiffs to rely on it. I shall refrain from referring to the 1st expert report in this decision.
8. After perusing Ms Lau’s curriculum vitae[8] annexed to the 2nd expert report, I am satisfied that she is qualified to give expert opinion in respect of the cause of the damages to the Plaintiffs’ flat, the remedial works that needed to be carried out, and the costs of such works. As indicated in the 2nd expert report, the expert had undertaken an on-site inspection on 29 October 2021[9]. On the whole, I accept the expert opinion to be both plausible and reliable.
9. I find that the Plaintiffs have proved its case as set out below.
THE PLAINTIFF’S CASE
10. The Plaintiffs are the registered owners of a flat located at Flat No 11 (formerly Flat No 1011) on 10th Floor, Po Lee Building, No 995 King’s Road, Hong Kong, as joint tenants. The Defendants are tenants-in-common of the flat situated at the 11th floor of the same building immediately above the Plaintiffs’ flat.
11. In or about early 2018, water seepage was observed in the dining room and the living room of the Plaintiffs’ flat. The water leakage later deteriorated and spread to the toilet and bedroom. Despite numerous complaints made to the Defendants, the management office of the building, and the Joint Office of the Buildings Department/Food and Environment Hygiene Department, the water seepage problem did not improve and continued.
12. The Plaintiffs had entered into a tenancy agreement[10] on 8 October 2017 for a monthly rent of $9,800 with a term of 2 years, ending in 10 October 2019. However, the water seepage problem rendered the Plaintiffs’ flat inhabitable. As a result, the tenant terminated the tenancy prematurely by the end of June 2019[11].
13. In order to mitigate the loss, the Plaintiffs engaged a contractor to perform temporary repair work. The Plaintiffs were able to let the flat again in January 2020 at the monthly rent of $9,800, which is said to be below the market rental value of the Plaintiffs’ flat.
14. According to Mr Wen, the water seepage problems in the living room, dining room, bathroom, and bedroom had further deteriorated in March 2020. The problem caused nuisance to the tenant, who also discovered that the water seepage had cause damages to his personal belongings. As a result, the tenant terminated the tenancy prematurely in June 2020. At the hearing, Mr Wen confirmed that, as of the date of this assessment hearing, the Plaintiffs are still unable to rent out the flat because of the persisting water seepage problem.
EXPERT OPINION
15. According to the 2nd expert report, the total costs of remedial works done in relation to the damages as observed on 11 December 2019 (which was the date of the 1st expert report) amounted to $44,668,80, the details of which are as follows:-
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Item No |
Works |
Claimed Amount |
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1. |
Works done in removal of the finishing in the ceiling, interior wall and beam, and repaint the finishing |
$42,218.80 |
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2. |
Cleaning fees |
$2,450.00 |
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Sub-total: |
$44,668.80 |
16. The 2nd expert report also stated that further damages were done to the Plaintiffs’ flat because of the persistent water seepage problem since the inspections took place in 2019. Such damages[12] include blackening, yellowing, rusting and cracking in the wooden wall of the kitchen; molds on the top of the wooden door of the dining room; molds, water marks, and cracks in wood gallery of the dining room; molds in wood gallery of the living room; molds, water marks, finishing pop-up, rusting screws in Wall Cabinet A in the kitchen; molds, finishing pop-up and rusting screws in Wall Cabinet B in the kitchen; water marks in ceiling lampshade and floor brick in the living room; rusting and water drops in the window frame in the living room; and damages in the aluminum strip ceiling. Having perused the photographs annexed to the 2nd report, I found that these further damages are supported by evidence.
17. The details of the further remedial works in relation to the said damages are as follows:-
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Item No |
Works |
Claimed Amount |
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1. |
Works done in removal of the finishing in the ceiling, interior wall and beam, and repaint the finishing (inclusive of the works done in 2019) |
$20,618.00 |
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2. |
Removal of the wooden wall, fixing the wooden frame, and painting and re-fixing the wooden door |
$7,457.80 |
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3. |
Removal of wooden galleries in the dining room and the living room, installation of the new wooden galleries, and paint the galleries |
$5,377.80 |
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4. |
Removal the two Wall Cabinets in the kitchen, and remake and installation of the new cabinets |
$14,800.00 |
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5. |
Replacement of the lamp in the ceiling and electricity testing |
$3,000.00 |
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6. |
Scaffolding, and installation of the new aluminum window and window frames, and the relevant water-proof works |
$7,800.00 |
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7. |
Replacement of the strip ceiling |
$200.00 |
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8. |
Cleaning fees |
$3,150.00 |
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Sub-total: |
$62,403.60
(rounding up at $62,404) |
DISCUSSION
18. According to the opening submissions, the Plaintiffs seek to claim the following heads of damages in this assessment hearing:-
(a) Costs of remedial works;
(b) Replacement of furniture and electrical appliances;
(c) Loss of rental income;
(d) Damages for distress, discomfort and inconvenience.
19. I now deal with the said heads of damages in the same order.
(1) Costs of Remedial Works
20. Generally speaking, damages for costs of repair and reinstatement is recoverable for physical damage caused to the property by nuisance [13].
21. According to the Plaintiffs, they undertook temporary remedial works in July 2019. Such temporary works costed $50,000. To support this claim, the Plaintiffs produce a quotation issued by Gold Brand Consultants Limited (“Gold Brand”) dated 10 July 2019[14], and a receipt for the said sum dated 20 October 2019[15]. I accept that this amount of $50,000 had been actually paid by the plaintiff. However, there is no evidence before me that the said remedial works covered those, and only those, items which were caused by the water seepage problem and for which the Defendants were held responsible. Furthermore, as there is no evidence before me that the Plaintiffs had invited other contractors to provide quotations of such remedial works, I do feel diffident to hold that this amount was reasonable in the circumstances.
22. On the other hand, according to the 2nd expert report, the reasonable costs for the relevant works to be done as observed during the inspections took place in 2019 (which was however after the temporary remedial works had been taken) amounted to $44,668.80. I find this figure more reliable. I would award this amount in full instead.
23. According to Mr Wen’s testimony, the water seepage problem reoccurred within 6 months after the aforesaid temporary works. The Plaintiffs opined that, in absence of the remedial works done in the Defendants’ flat, it would be a waste of money to undertake another remedial works at the plaintiff’s flat. Although further quotation was obtained from the Gold Brand[16], no further remedial works had been undertaken after the said temporary works.
24. That being the case, I accept that, upon proof of the tortuous act causing physical damage to the property, the liability of the defendant to compensate the plaintiff accrues. Even if the repair is yet to be carried out, such fact is no bar to the claim for the costs of it [17].
25. Accordingly, I am satisfied that the Plaintiffs are entitled to claim against the Defendants for the costs of further remedial works as stated in the 2nd expert report. There is no basis to suggest that the amount stated in the 2nd expert report ($62,404) was excessive or unreasonable. I would also award this amount in full.
26. The total amount for the remedial works is therefore $107,072.80 (ie $44,668.80 + $62,404).
(2) Replacement of Furniture and Electrical Appliance
27. In his witness statement, Mr Wen asserted that the Plaintiffs need to replace the range hood and the kitchen cabinets. He stated that the market value of the range hood was about $3,000 and produced a cash memo issued by Wing Hong Electrical Supplier for a model at the price of $3,120[18].
28. The Plaintiffs also seek to claim for replacing two beds, two bedside boxes, two closets, and two desks in two rooms, as well as the kitchen cabinets. The total costs for these replacements are RMB26,700[19]. Mr Wen estimated that the Hong Kong equivalent (including the costs for installation) would be about $35,000. At the hearing, Mr Wen revised the figure to $37,000.
29. With all due respect, I do not find that a claim under this head can be made out. First of all, save and except the bare assertion of Mr Wen, there is no contemporaneous documents suggesting that the water seepage problem had caused damages to the Plaintiffs’ range hood. Even if I accept as a matter of fact that the Plaintiffs’ range hood was damaged, absent any expert evidence, I do not think I am able to be satisfied that such damage was indeed caused by the water seepage. In my view, the claim for range hood is not established.
30. The same observation applies to the replacement of furniture and kitchen cabinet. It is noted that nowhere in the Plaintiffs’ expert reports did the expert find damages done to the Plaintiffs’ beds, closets, and desks. I am told that such furniture had already been disposed of when the expert first inspected the flat in 2019. Furthermore, there is no indication as to whether the damaged bedside boxes, closets, and desks were the Plaintiffs’ properties, or, if not, whether the Plaintiffs had indemnified the tenants for the loss. As I said in the context of the claim for range hood, even if I accept that such furniture was damaged, there is no expert evidence before me that such damages were caused by the water seepage problem.
31. It is also noted that the expert had included costs for the remake and installation of new wall cabinets in the kitchen[20]. Mr Wen confirmed at the hearing that the kitchen cabinets in this head of damage is the same cabinets referred to in the 2nd expert report. In the circumstances, I am not prepared to award damages in relation to the kitchen cabinets as claimed.
32. For the above reasons, I am not satisfied that the furniture and electrical appliance were damaged because of the water seepage problem. Part of this head (ie the kitchen cabinets) is covered by the remedial works, which I have already dealt with. Accordingly, there would be no award under this head of damages.
(3) Loss of Rental Income
33. It was submitted that loss of rents is recoverable as damages consequent upon the injury to the property by the nuisance[21]. I have no query about this proposition.
34. Under this head, the Plaintiffs’ claim is divided into three parts. The first part concerns the loss of rental income due to the early termination of the tenancy by the tenant in June 2019. According to the Plaintiffs, in order to mitigate the loss, temporary remedial works were done between June and October 2019. The Plaintiffs were not able to rent out the flat until January 2020. While the Plaintiffs’ original claim was for 7 months, Ms Lee has at the hearing fairly revised it to 6 months. Accordingly, the Plaintiffs claim for loss of rental income at monthly rate of $9,800 in the 6 months’ period between July 2019 and December 2020 (inclusive), ie $58,800 ($9,800/month x 6 months).
35. To support this claim, the Plaintiffs produced the tenancy agreement dated 8 October 2017[22]. Having considered the document, I am satisfied that the market rental value was $9,800 at the material times and I would award the said sum of $58,800 in full.
36. The second part of this head concerns the difference between the prevailing market value and the actual rent during the currency of the 2nd tenancy between January 2020 and June 2020. According to Mr Wen, insofar as the 2nd tenancy is concerned, the prevailing market value of the Plaintiffs’ flat was $12,000. The evidence on which the Plaintiffs rely in support of this sub-head of damages is the bare assertion of Mr Wen that the Plaintiffs were able to rent out another flat in the same building at $13,000. Mr Wen also stated that, according to the information provided by an estate agent, the market rental value of the Plaintiffs’ flat was $11,000 per month. He further said that, according to his experience and knowledge, the estate agent tended to lower the rent to attract potential tenants. It was his opinion that the prevailing market rental value of the Plaintiffs’ flat was $12,000 per month.
37. With all due respect, I do not accept this evidence of Mr Wen. First of all, as I pointed out during the hearing (and Ms Lee appeared to have agreed), Mr Wen did not have the status to give any opinion evidence for the prevailing market rental value of the Plaintiffs’ flat without leave of the court[23]. No evidence before me can establish that the other flat owned by the Plaintiffs would constitute a reasonable comparable of the subject property in this case. In the brochure issued by estate agent[24], the monthly rent of the same building was also $9,800. There is no evidential basis for me to accept that the prevailing market rental value of the Plaintiffs’ flat is $12,000. I therefore reject the claim for the difference between the prevailing market rental value and the actual rent during the currency of the 2nd tenancy.
38. The third sub-head of damages is about the loss of rent since the early termination of the 2nd tenancy in June 2020. Mr Wen stated that the Plaintiffs were not able to rent out the flat since then. The Plaintiffs claim on the basis of the prevailing market value of $12,000 per month. Accordingly, the total claim under this part amount to $324,000.
39. In this regard, I have carefully considered the photographs annexed to the 2nd expert report[25]. The pictures clearly show that the plaintiff’s flat was in devastated conditions at the material times. I accept that such an adverse state would make the flat unfit for occupation, and find that the Plaintiffs’ flat was indeed uninhabitable[26]. I find as a matter of fact that the plaintiff would not be able to lease the flat out unless some remedial works were to be carried out by the Defendants in their flat.
40. That being said, in light of my ruling regarding the prevailing market rental value of the Plaintiffs’ flat, I am only prepare to award damages based on the market value of $9,800 per month. According to Mr Wen’s testimony, the Plaintiffs were not able to rent out the flat as of the date of the assessment hearing. The Plaintiffs are therefore entitled to claim damages in respect of the loss of rental income for 25 months and 16 days from July 2020 to the date of this assessment. My award under this part of the claim is $250,058.06 (ie, ($9,800 per month x 25 months) + ($9,800 per month ÷ 31 days per month x 16 days)).
41. The total amount under this head is therefore $308,858.06 (ie, $58,800 + nil + $250,058.06). I would award this amount accordingly.
(4) Damages for Distress, Discomfort and Inconvenience
42. The Plaintiffs also claimed for general damages for inconvenience suffered by the Plaintiffs in the sum of $20,000. Mr Lee submitted that the damages for inconvenience could be claimed even though the Plaintiffs rent out the flat and did not suffer any direct distress or discomfort as a result of the water seepage problem[27]. To support this head, Ms Lee referred me to the evidence given by Mr Wen that the Plaintiffs had spent substantial amount of time and effort in trying to contact the Defendants but to no avail. Mr Wen and the 2nd plaintiff had also frequently visited the Plaintiffs’ flat to monitor the water seepage problem. The Plaintiffs had also spent time in handling tenant’s complaints relating to the water seepage problem.
43. I accept as a matter of principle that the Plaintiffs are entitled to recover general damages for distress, discomfort, and inconvenience. I am also satisfied that the sum of $20,000 is reasonable and is in line with the authorities cited to me by Ms Lee.
44. I would therefore award a sum of $20,000 under this head of damages.
(5) Summary
45. Accordingly, I would assess the Plaintiffs’ damages in the present action at the sum of $435,930.86, the details of which are as follows:-
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Item No |
Description |
Awarded Amount |
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(a) |
Costs of Remedial Works done in July 2019 |
$44,668.80 |
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Costs of Further Remedial Works |
$62,404.00 |
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(b) |
Replacement of furniture and electrical appliances |
Nil |
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(c) |
Loss of rental income between October 2019 and January 2020 |
$58,800.00 |
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Difference of prevailing market rental value and actual rent between January 2020 and June 2020 |
Nil |
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Loss of rental from June 2020 to date |
$250,058.06 |
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(d) |
Damages for Distress, Discomfort, and Inconvenience |
$20,000.00 |
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Sub-total: |
$435,930.86
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INTERESTS
46. While Ms Lee did not make any submission in her opening submission in respect of the interest, she sought at the hearing interests of the awarded sum from the date of the Writ of Summons (ie 20 March 2020) to the date of this assessment at 1% above HSBC’s best lending rate, and at judgement rate thereafter until payment.
47. I find the said submission reasonable and would grant an order accordingly.
COSTS
48. Costs should follow the event. I order that the defendant should pay the plaintiff’s costs of these assessment proceedings.
49. In the Plaintiffs’ statement of costs lodged on 12 August 2022, their costs of this action amount to a total sum of $188,168.67. Having considered the said statement, I find some room for reduction. In my view, the present case is a simple and uncontested water seepage case. I find it luxurious to have a total of 4 hours (with two different fee earners) for attendant on client. Furthermore, given there are only two substantive court documents (namely the specifically endorsed Writ of Summons and the Witness Statement of Mr Wen) in this action, the fees charged for preparation of documents (with the rates of four fee earners spending a total of 27 hours and 20 minutes) appear to be grossly inflated. In my view, a total of 15 hours at the nominal rate of $2,600 per hour should be sufficient to handle this case properly. The profit costs would therefore be $39,000 (ie $2,600 per hour x 15 hours).
50. I am prepared to award the costs for manual work ($6,312), counsel fee (totaling $18,000) and disbursements (totaling $86,305, inclusive of expert fees of $64,000) in full.
51. In the circumstances, on a broad-brush approach, I fix the Plaintiffs’ costs at $149,617 (ie, $39,000 + $6,312 + $18,000 + $86,305).
DISPOSITION
52. For the reasons as aforesaid, I enter final judgment in favour of the 1st and 2nd plaintiffs against the 1st and 2nd defendants in the sum of $435,930.86, payable jointly and severally, together with interests thereon at 1% above HSBC best lending rates from 20 March 2020 to the date hereof, and at judgment rate thereafter until full payment.
53. I also order the 1st and 2nd defendants to pay jointly and severally the 1st and 2nd plaintiffs’ costs of this action, including the costs of the assessment of damage and all costs reserved, summarily assessed at $149,617, payable forthwith.
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( Maurice Lam )
Master, District Court |
Ms Katrina K W Lee, instructed by K Y Lo & Co, for the 1st and 2nd plaintiffs
The 1st and 2nd defendants were not represented and did not appear
[1] [A:54-55].
[2] See paragraph 2 of the Order made by His Honour Judge Harold Leong dated 2 September 2020 [A:51-23]
[3] See §§6-9 of the Statement of Claim [A:5-7].
[4] See §§13-21 of the Statement of Claim [A:8-10].
[5] [A:72-192].
[6] [B:193-402]. This report was filed on 30 December 2021.
[7] See paragraph 2 of the Order dated 28 January 2022 [A:65-68].
[8] [B:401-402].
[9] See §4.1 of the 2nd Expert Report [B:199].
[10] [B:464-467].
[11] See the termination letter from the tenant dated 1 June 2019 [B:468].
[12] See items 2.1–4.1 of paragraph 4.5 of the 2nd Expert Report dated 8 December 2021 [B:207-209].
[13] See 886HK Ltd v Amjad Nadeem [2018] HKDC 405 at §9(a), Ieong Cheong Kit v Hossain M Akhtak [2018] HKDC 1295 at §23, see also: McGregor on Damages (20th ed), para 39-017, and Clerk & Lindsell on Tort (22nd ed), para 20-29.
[14] [B:469].
[15] [B:471].
[16] [B:474].
[17] See Lee Wai Chuen v Cheung Chor Keung (DCCJ 3098/2006, 7 January 2011), at §31 (per HH Judge Leung).
[18] [B:480].
[19] See the quotation in [B:479].
[20] See Item No 4 of the Table in paragraph 18 above.
[21] See: Ieong Cheong Kit, ante, at §§34 & 38, see also: McGregor on Damages (20th ed), para 39-026.
[22] [B:464-467].
[23] See Order 38, rule 36 of the Rules of the District Court.
[24] [B:478].
[25] [B:214-369].
[26] See Annexure: Photo Records in the 2nd Expert Report [B:214-369].
[27] To support this proposition, Ms Lee refers to Chau Chung Mei v Leung Ying Ngai (DCCJ 4062/2012, 29 September 2014) at §§20-21, and Tsai Hsiu Yun v Lim Goine alias Lam Mui Kaw (DCCJ 862/2015, 22 August 2016) at §23.
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