CHEUNG WU YAN TAO v. CHUI SIU HAR

DCCJ 2258/2014 &
DCCJ 1862/2019
(Consolidated)

[2020] HKDC 885

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NOS 2258 OF 2014 AND 1862 OF 2019

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(Consolidated by Order of Master B Mak dated 17 September 2019)

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J U D G M E N T

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1.  This is a water seepage case. This is the trial of these two actions, which were consolidated and ordered to proceed as one action^[1]. They were commenced by the same plaintiff against the same defendant in respect of seepage from and to the same respective premises, but occurring at consecutive periods, as explained below. 

2.  In DCCJ 2258 of 2014 (“the First Action”), an interlocutory judgment on liability with damages to be assessed was entered against the defendant on 23 December 2015 upon the defendant’s default in filing the Acknowledgment of Service and Notice of an Intention to Defend.  The trial in respect of the First Action therefore is an assessment of damages, while the trial in respect of DCCJ 1862 of 2019 (“the Second Action”) is a trial on both liability and quantum.

3.  The defendant has not taken any part in these two actions.  She does not appear in this trial to contest them.

Background and the facts

4.  I find the plaintiff a reliable and honest witness and accept her evidence, which is uncontested.  The below are my findings based on her evidence and the documents proffered by her.

5.  Since about March 2010, water began to seep through the ceiling of the kitchen of the premises known as Flat D, 9/F, 119 Cheung Sha Wan Road, Kowloon (“the Plaintiff’s Premises”).  The Plaintiff’s Premises has a living room, 2 bedrooms, a kitchen and a toilet with bath.  It has a net area of about 380 square feet.  The building was about 50 years’ old.  At the time, the plaintiff’s father-in-law, the late Mr Cheung King was the registered owner of the Plaintiff’s Premises and he lived there.

6.  The seepage problem then aggravated.  As recorded in the Inspection Report compiled by Food and Environment Hygiene Department (“FEHD”) dated 11 January 2013, there were signs of water seepage in the bathroom and kitchen ceiling in the Plaintiff’s Premises with serious damp patches and serious moisture.  The inspection report dated 15 March 2013 prepared by Wong Man Hong Surveyors Limited commissioned by FEHD and the Buildings Department (“March 2013 Report”) reported that there was consistent all-day-long seepage through the ceiling of the kitchen and bathroom in the Plaintiff’s Premises. From the results of tests conducted, it was concluded in the March 2013 Report that water infiltrated through the floor slab and the enclosing walls of the bathroom of Flat D on 10^th Floor (“the Defendant’s premises”) into the Plaintiff’s Premises.  By the order of the Master dated 17 September 2019, the March 2013 Report is adduced as evidence in this consolidated action without calling the maker thereof.

7.  It should be particularly noted that in the March 2013 Report, it was reported that the layout of the Defendant’s Premises had been changed in that the locations of the kitchen and the bathroom in the Defendant’s Premises had been switched[2] - that is, the kitchen was situated where the bathroom originally was and vice-versa.  The size of the present bathroom has also been reduced.  Evidently therefore, there had been substantial renovation and alteration work done earlier on to the kitchen and bathroom of the Defendant’s Premises.

8.  An advisory letter was then issued by FEHD to the defendant, who was (and still is) the registered owner of the Defendant’s Premises, demanding her to abate the seepage nuisance.

9.  The seepage problem however intensified in April 2013, whereupon the plaintiff reported the matter to the police twice – on 18 and 23 April 2013.

10.  On 12 April 2013, Mr Cheung King passed away.  A Probate was issued on 8 July 2013 to the plaintiff in her capacity as the only executor of the Will of Cheung King.  The plaintiff was also the sole beneficiary under the said Will. Shortly after, the plaintiff became the registered owner of the Plaintiff’s Premises.

11.  The seepage persisted.  The plaintiff persisted with her complaints to FEHD.  She also tried liaising with the defendant through the office of the building management.  However, all of the above were to little avail.

12.  On 11 June 2014, the plaintiff commenced the First Action against the defendant.  She was then legally represented.  There was then apparently some renovation work done in the Defendant’s Premises.  Thinking that the seepage had been remedied, the plaintiff abandoned the claim for injunctive relief in the First Action and entered the said default judgment against the defendant in December 2015.

13.  However, since about July 2016, the water dripping and seepage began to recur.  Around that time and due to shortage of financial resources, the plaintiff began acting in person in the First Action.  Later on, concrete began to be spalled and fell from part of the ceiling in the living room, kitchen and bathroom. 

14.  The plaintiff then engaged Mr Wong Shun Tai Stewart (“Wong”) of Proficient Surveyors & Co, a building engineer, as expert in the First Action.  Wong compiled a report dated 21 May 2018 regarding the quantum of the damages suffered by the plaintiff as a result of the seepage.

15.  As the seepage continued, the plaintiff commenced the Second Action on 12 April 2019 to seek to obtain, among others, injunctive relief against the continuous nuisance.  On 17 September 2019, it is ordered that the two actions be consolidated and shall proceed as one action, and that the expert reports and witness statements filed shall be admitted as evidence for both actions.

Liability - the report of Wong dated 15 January 2020 on liability

16.  Apart from relying on the March 2013 Report, the plaintiff further filed an expert report of Wong on liability dated 15 January 2020.

17.  On 8 January 2020, Wong attended the Plaintiff’s Premises and the Defendant’s Premises and conducted various inspections and tests.  Wong’s examination and the results of various tests conducted revealed, in gist, 

(a)  water from the floor of the kitchen of the Defendant’s Premises seeped through to the ceiling and to the walls of the kitchen and bathroom in the Plaintiff’s Premises;

(b)  water from the floor of the kitchen of the Defendant’s Premises seeped through and dampen the floor in the living room area of the Defendant’s Premises, and from there passed through the floor slab to the ceiling and walls of the living area and bedrooms of the Plaintiff’s Premises;

(c)  there is no evidence to show water seeped through the floor of the bathroom of the Defendant’s Premises into the Plaintiff’s Premises, though Wong observed that there should have been repairs done to the bathroom of the Defendant’s Premises.

18.  Wong opined there to the effect that the waterproof membrane in the floor slab of the kitchen in the Defendant’s Premises has been made insufficient and/or damaged.

19.  In paragraph 5 at page 15 of his report, Wong further opined on and listed the remedial works required to be done in the Defendant’s Premises to stop such further seepage.

20.  I accept the said tests results and opinion of Wong.  Basing on the same and the plaintiff’s evidence, I find that the water seeping has recurred from the Defendant’s Premises to the Plaintiff’s since 2016 and is continuing.

21.  By allowing the waterproof membrane to be somehow damaged and then by further allowing it to continue to fall into disrepair despite the plaintiff’s persistent complaints of water seepage, the defendant was in clear breach of her obligation under Clause 8(c) of the Deed of Mutual Covenant not to permit anything in the Defendant’s Premises which may create or become a nuisance.  I therefore find the defendant liable.

Quantum

Costs of repairs, reinstatement and renovation

22.  Wong compiled a report dated 21 May 2018 reporting on the damage to the Plaintiff’ Premises.  Numerous photographs depicting the damage were taken and attached to the report.  Wong further opined there on the reinstatement and renovation works to be done to repair the damage caused by the seepage, and on the estimate costs for each item of work.  These works were itemized and fully set out in the table at pages 11 and 12 of the report^[3].  Without listing them exhaustively, the remedial works include repairing the ceiling binding concrete, re-plastering and re-painting the ceiling and walls, replacing the teak parquet flooring which was damaged due to long duration of dripping and seepage.  I find all the items and their cost estimates reasonable.  Such repair reinstatement and renovation works were estimated to cost in total HK$160,045.

23.  Mr Tam on behalf of the plaintiff submits that the cost estimates were made according to the price as in May 2018 and as the works are to be undertaken in 2020, increase in the costs caused by inflation ought to be allowed at the rate of 5% per year for 2 years.  I agree and would allow some inflation and round the award to HK$175,000.

Alternative accommodation during repair, reinstatement and renovation; moving costs

24.  The plaintiff claims costs of hotel accommodation for 2 rooms during the time such repairs are done, in the total sum of HK$33,600.

25.  It is the evidence of the plaintiff, which I accept, that only her husband has been living in the Plaintiff’s Premises since shortly after the passing of the late Mr Cheung King; while she and her son lived in the public housing unit, of which the husband has been the registered tenant.

26.  Since the trite principle regarding the award of damages to a victim of tort is to put him in the position he would have been in had he not sustained the wrong, damages therefore should be awarded to afford the plaintiff’s husband accommodation commensurate with the conditions of the Plaintiff’s Premises had there been no seepage.  It therefore seems to this court that awarding the costs of renting short term, say two months, of a flat in Sham Shui Po similar to the Plaintiff’s Premises is more reasonable.  According to Wong’s opinion contained in his report, which I accept, the rent the Plaintiff’s Premises would be able to fetch is HK$12,000.  I thus award HK$24,000 for alternative accommodation during repairs.  I agree with Mr Tam that certain moving costs should be awarded for moving furniture and belongings from the Plaintiff’s Premises to this temporary accommodation and later back to the Plaintiff’s Premises after renovation is completed.  I would thus add another HK$4,000 making the award under this item to HK$28,000 in total.

Rent for alternative accommodation

27.  This is not pursued further in light of the plaintiff’s evidence set out in paragraph 25 above.  

Surveyor’s fees

28.  This item was claimed for in paragraph 27 of the Statement of Claim in the Second Action.  As the reports compiled by Wong are adduced as expert evidence, their costs should be part of disbursements forming the plaintiff’s costs of this consolidation action (and should be claimed as such) and not part of the loss and damage.

General damages for distress, discomfort and inconvenience

29.  This is clearly a recoverable item.

30.  The duration of seepage in this case is exceptionally long – for 10 years by now – save there was a period between late 2015 to July 2016 when the seepage had stopped.  In all these years, the defendant has been completely oblivious to the plaintiff’s plight caused by the seepage.

31.  I accept the plaintiff’s evidence that:-

(a)  The plaintiff was 52 years old and her husband was 60 in 2010 when the seepage began.

(b)  Since 2010 she had been visiting the Plaintiff’s Premises and taking care of the late Mr Cheung King almost daily.  She was burdened by the need to clean the Plaintiff’s Premises as soiled and dirty water had been seeping through to the Plaintiff’s Premises. 

(c)  This prolonged water seepage problem had been a matter that triggered constant conflict and tension between her and her husband who wanted very much to move back to live in the Plaintiff’s Premises after his father had passed away.  These conflicts and tensions contributed to their eventual separated. As their relationship worsened, her husband moved to live in the Plaintiff’s Premises despite the seepage.

(d)  The plaintiff has made constant complaints and wrote many letters to various authorities with a view to remedy the problem, but to no avail.  The seepage problem has caused great distress and frustration to her in all these years.

32.  As seen from the pictures produced by the plaintiff and those taken by Wong and attached to his reports, patches of moulds grew covering most of the ceiling and some parts of the walls, and the plaster and paint there also peeled off.  There were clear unpleasantness and health and hygiene hazard caused by the long and constant seepage.  Binding concrete were spalled in several parts of the ceiling.  

33.  The plaintiff now claims HK$200,000 under this head of damage.  Mr Tam cites in support Chan Wai Shin v Pang Chung Kong (DCCJ 2346/2017, unrep, 27 September 2019, HHJ Winnie Tsui) in which the learned judge awarded HK$150,000 for the seepage which lasted for 4 years and for which “the plaintiff has made out an overwhelmingly strong case of grave disturbance and mental distress”.  I have also considered the two cases cited to HHJ Winnie Tsui there, namely Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456 and Chung Yin Ha v Tse Shui Sam (DCCJ 2605/2016, unrep, 22 February 2019).  In the latter 2 cases, HK$80,000 was awarded for much shorter periods of duration of water seepage.  I would also take into account the fact that the building was already around 40 years old when the seepage began.

34.  In the circumstances and considering the matter in the round, I would allow the sum claimed in full, which is HK$200,000.

Disposal

35.  In the premises, I give judgment to the plaintiff in the Second Action. I award damages in the total sum of HK$403,000 in respect of the plaintiff’s claims in both actions.  I also award to the plaintiff interest in respect of the general damages in the sum of HK$200,000 at half judgment rate from the date of the writ of the First Action to the date of this judgment, and then after at judgment rate until full payment.

36.  I also grant the following injunctive relief:-

(1)  The defendant, whether by herself, her servants, agents, tenants, occupiers, or otherwise howsoever, be restrained from allowing, causing or permitting the nuisance of a like kind, namely seepage and leakage of water from the Defendant’s Premises to the Plaintiff’s Premises; and

(2)  The defendant do, within 8 weeks from the date this Order is served to her and at her own costs, carry out and complete such proper and necessary repairs and/or works to rectify and stop any water seepage or leakage from the Defendant’s Premises to the Plaintiff’s Premises.

37.  I also make a costs order nisi that the defendant do pay the plaintiff the costs of these two actions, including all costs reserved, if any, to be taxed if not agreed; and the plaintiff’s own costs in these two actions, incurred while she was receiving legal aid, shall be taxed according to the Legal Aid Regulations.

38.  Lastly, this court thanks Mr Tam for his assistance.