KONG LAI WAN AND ANOTHER v. HO SHUI LUNG

DCCJ 482/2019

[2024] HKDC 1331

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 482 OF 2019

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BETWEEN

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is the assessment of damages arising out of a water seepage dispute.

2.  At the material times, the 1^st Plaintiff and the 2^nd Plaintiff (the “Plaintiffs”) are and were the registered owners of G/F and Garden, 180C Shek Po Tsuen, Yuen Long, New Territories (the “Property”) and have been living at the Property. The Defendant is and was the registered owner of 1/F, 180C Shek Po Tsuen, Yuen Long, New Territories, which is located directly above the Property (“D’s Property”).

Procedural Background

3.  On 29 January 2019, the Plaintiffs commenced the present action for damages against the Defendant based on nuisance, negligence, and breach of the relevant deed of mutual covenant.

4.  On 12 July 2019, interlocutory judgment was entered against the Defendant with damages to be assessed (the “Interlocutory Judgment”). The Court has also ordered the Defendant to take all reasonable steps at his own costs to prevent water from leaking, dripping and/or seeping from D’s Property to the Property within 8 weeks days from the date of service of the Order.

5.  On 18 December 2020, the Plaintiffs issued a Notice of Appointment of Assessment of Damages.

6.  By the Order dated 1 March 2021, the Court gave directions as to the filing of evidence for assessment of damages. The Defendant who failed to comply with the said directions is deemed to have elected not to adduce any evidence at the assessment hearing.

7.  By the Order dated 13 June 2022, the Court has set the case down for trial. Up until the date of the said Order, the Defendant had not participated in these proceedings.

8.  On 13 November 2023, the Defendant appeared in person and indicated that he wishes to contest the hearing. At the occasion, the Court has explained to the Defendant that, the hearing is for the assessment of damages, and separate applications would have to be made if there is any dispute as to liability. The Defendant then applied for an adjournment for him to consider the Plaintiffs’ evidence and to consider taking out applications to adduce evidence and to dispute liability.

9.  After hearing from parties, trial was adjourned to the present hearing with costs to the Plaintiffs. On the same day, it was ordered that, unless the Defendant takes out any applications at least 28 days prior to the adjourned hearing, the Plaintiffs shall have leave to adduce their expert report as evidence without calling the maker thereof. There were also directions given for the Defendant to lodge and serve written submissions for the adjourned hearing of the assessment of damages.

The Present Hearing

10.  On 19 February 2024, the Defendant attended the hearing and continued to act in person. Despite the Order on 23 November 2023, the Defendant has not filed any written submissions for the assessment of damages.

11.  At the hearing, I have reminded the Defendant that this is an assessment of damages, and in absence of any application on his part, the issue of liability is settled by the Interlocutory Judgment. Given that the Defendant is acting in person, I have directed that the trial to be conducted in Chinese. As the Plaintiffs’ opening submissions and some of court documents are in English, I allowed time for the Defendant to seek assistance from court interpreter to go through those documents in English.

12.  At the hearing, the Defendant also applied in court to adduce some documents as his evidence at trial. On 1 December 2023, the Defendant has filed into Court a set of photos of 13 pages, which shows the exterior of a building and the interior of D’s Property, and a water bill of D’s Property from June to October 2023 (collectively the “New Documents”). The New Documents were not served to the Plaintiffs or their solicitors.

13.  Counsel for the Plaintiffs oppose the Defendant’s application on the ground of lack of relevance of the New Documents when liability is established pursuant to the Interlocutory Judgment. There is also no explanation of what is shown in the photos and what is the purpose of them. The Defendant submitted that, the relevance of the New Documents is that, they show there was no water leakage from D’s Property as the bathtub was already removed and there was no use of water at the area. I am of the view that the Defendant has failed to show the relevance of the New Documents for purposes of assessment of damages, particularly when without any witness statements from the Defendant.

14.  Counsel for the Plaintiff also complained of the lateness of the Defendant’s application. I note that, the Defendant did not file affirmations to give reasons why the New Documents were disclosed at such a late stage. I have also considered the fact that adjournment was allowed at the hearing on 13 November 2023 for the Defendant to consider making applications to dispute liability and to adduce evidence which he did not do so. If the Defendant’s application were to be allowed, the Plaintiffs would be prejudiced as they will not have the opportunity to respond to those New Documents.

15.  After hearing submissions from both Counsel for the Plaintiffs and the Defendant, I have refused the Defendant’s application to adduce the New Documents as his evidence at trial with costs to the Plaintiffs.

The Plaintiffs’ Case

16.  Only the 2^nd Plaintiff, Mr Yuen Kai Leung, gave evidence at the hearing of assessment of damages. He adopted his witness statement filed on 7 May 2021 and his supplemental witness statement filed on 17 January 2022 as his evidence-in-chief. The gist of his evidence is as follows.

(1) In about November 2016, the Plaintiffs discovered there was water leakage in the bathroom of the Property. The water leakage problem later worsened and spread to the kitchen, the living room and the bedroom of the Property.

(2) In or about July 2017, the Plaintiffs engaged a contractor to carry out temporary repair works the Property because of the water leakage.

(3) The Plaintiffs reported the water seepage problem to the Joint Office of the Food and Environmental Hygiene Department and the Building Department (the “Joint Office”).

(4) After their investigation, the Joint Office issued a nuisance notice to the Defendant in December 2017 (the “Notice”) stating that the bathroom of D’s Property was the source of water seepage to the Property leading to an existence of a nuisance. The Notice required the owners of D’s Property to abate the nuisance by repairing and maintaining the floor slabs of the shower area of the bathroom.

(5) On 16 March 2018, the Joint Office went to inspect the Property and D’s Property and concluded that the water seepage problem at D’s Property has ceased.

(6) In around September 2018, there was water dripping again at the affected areas of the Property, and the water seepage problem continues.

(7) As a result of the water leakage from D’s Property, the Plaintiff suffered loss and damages.

17.  According to Mr Yuen’s evidence, damage has been caused to the kitchen, bathroom, one of the bedrooms, and the living room of the Property as a result of the water leakage problem.

(1) At the bathroom, there was water dripping from the ceiling causing damage to the lights.

(2) At the kitchen, damage was caused to the kitchen cabinet, induction cooker, and the range hood. Electrical wiring of the boiler was damaged, which required repairing and rerouting. The kitchen cabinet has been therefore taken down. The cooking and washing facilities had to be moved to the backyard. The kitchen appliances and utensils had to be placed in the living room. The sockets had to be taped to avoid water going in.

(3) For the living room, damage was caused to the ceiling lights and the refrigerators. The Plaintiffs disposed of the sofa, dining table and chairs to make room for storage.

(4) In the bedroom, damage was caused to the lights at the ceiling, the wardrobe and the clothes and personal items stored therein. The window frames had to be taped to secure them. There was also water dripping from the walls of the bedroom which often triggers the circuit breaker inside the electrical socket.

18.  The Plaintiffs have also produced photos taken of each of the kitchen, bathroom, bedroom, and living room of the Property to demonstrate the extent and severity of the water leakage problem.

The Plaintiff’s Expert Report

19.  By way of the Order dated 17 August 2021, the Plaintiffs’ have leave to file expert evidence on quantum in relation to costs of repairing the Property as a result of the water leakage problem. Pursuant to the Order, the Plaintiffs have adduced the report dated 17 September 2021 prepared by Ms. Lau Shan La (“P’s Expert”), Surveyor and Engineer of Hong Kong Survey Limited (the “Expert Report”).

20.  On 6 September 2021, P’s Expert inspected the Property in the presence of Mr Yuen. Photos were taken of the affected areas and included in the Expert Report. The purpose of the inspection is for P’s Expert to suggest repair works needed at the Property and to assess the costs of the repair works. According to the Expert Report: -

(1) The suggested repair works include: -

i. Replastering and repainting the ceiling of the living room and the affected bedroom;

ii. Replastering and retiling the ceiling of the bathroom and kitchen;

iii. Reinstalling the kitchen cabinet, induction cooker and range hood;

iv. Engaging an electrician to check all the wiring of the Property and replace or repair as necessary, and to reinstall the ceiling light at the living room

(the “Suggested Repair Works”)

(2) It is estimated by P’s Expert that, the time needed for the Suggested Repair Works to be carried out is 8 days.

(3) P’s Expert estimated the costs of the Suggested Repair Works (including alternative accommodation costs, government charges, insurance, and cleaning expenses) are at HK$ 49,354.90.

The Plaintiffs’ Claim

21.  I have noticed that there are overlapping items claimed under the various heads as pleaded in the Amended Statement of Claim. As confirmed in her closing submissions, Counsel for the Plaintiffs has sensibly made adjustments and has confined the Plaintiffs’ claim to the following: -

Items	Amount (HK$)
(1) Costs of Repair Works (a) Temporary remedial works done in 2017 (b) Estimated costs for repair works	22,100 64,300
(2) Costs of alternative accommodation, storage and moving expenses	45,576
(3) Costs of replacement of furniture and electrical appliances	86,926
(4) Damages for distress, discomfort and inconvenience	150,000
TOTAL:	368,902

The Defendant’s Case

22.  Save for the application made today, the Defendant has not adduced any evidence or filed any witness statement in these proceedings.

23.  In his oral closing submissions, the Defendant made the following points: -

(1) The Plaintiffs may not be able to prove liability, as he does not cook or take showers at his property. There is no water usage from his property as alleged by the Plaintiffs. He also claims there were unauthorised structures at other floors.

(2) He disputes the repair costs as alleged to have been incurred by the Plaintiffs, as there is no record of payment. He disputes the invoice and quotation produced by the Plaintiffs.

(3) He disputes the truthfulness of the Plaintiffs’ evidence of damaged furniture, as there are no photos of them produced. He also claims it is unreasonable for the Plaintiffs to claim for brand new furniture as replacement.

Analysis

24.  I have considered Mr Yuen’s evidence. I find that his evidence is generally supported by the photos produced and consistent with the findings in the Expert Report. Therefore, I accept his evidence of the water leakage problem and its extent as summarised in paragraphs 16 to 17 in the above.

25.  As for the Expert Report, neither the Plaintiffs nor the Defendant required P’s Expert to attend Court to explain or answer to challenges to her assessment. I consider the Expert Report to be undisputed and I accept the assessment in the Expert Report on the estimated repair costs of the Property.

26.  On that basis, I now turn to each of the items claimed by the Plaintiffs.

(1) Costs of Repair Works

27.  Damages for costs of repair and reinstatement is recoverable for physical damage caused to the Property by nuisance which included those damages caused to chattels.

28.  In the present case, the Plaintiffs claim (a) costs of the temporary remedial works carried out in 2017, and (b) the estimated costs to repair the damaged areas at the Property.

29.  In respect of item (a), the Plaintiffs claim the sum of HK$ 22,100 being the costs actually incurred for temporary remedial works carried out in the Property in 2017 (the “2017 Works”). In this regard, the Plaintiffs produced the invoice by Kam Fung Engineering Co. dated 10 June 2017 (the “Invoice”). The Invoice includes taking off the ceiling tiles at the bathroom and kitchen, removing the kitchen cabinet, checking the electricity supply, rewiring work, and replacing sockets at the kitchen. It also includes works to relocate the kitchen facilities to the backyard, which includes installing a sink and taps with water supply, and electricity supply.

30.  The Defendant challenged this item as there was no receipt produced. However, Mr Yuen explained in Court that, the works were completed sometime in June 2017 and he paid the contractor by cash. There was no receipt given to him at the time. The Invoice was the only document of record he had.

31.  In respect of item (a), I have considered the contemporaneous photos showing the bathroom, kitchen (before and after the 2017 Works) and backyard of the Property. In particular, I find that it is reasonable for the Plaintiffs to relocate the cooking and washing facilities to the backyard. I accept Mr Yuen’s evidence that the sum was reasonably incurred and actually incurred. I allow the sum claimed.

32.  As for item (b), the Plaintiffs claim the sum of HK$ 64,300 being the estimated costs of repairs, relying on a quotation of Shing Hing Aluminium & Steel Eng Co Ltd dated 22 November 2019 (the “Quotation”).

33.  However, I drew parties’ attention to the fact that the Plaintiffs have also adduced the Expert Report as their evidence where P’s Expert assessed the costs for the repair works to be carried out at the Property. I also consider the Expert Report to be unchallenged. At their closing submissions, Counsel for the Plaintiffs asked the Court to adopt the estimation in the Quotation instead of that of the Expert Report for the reason that the figure in the Quotation is more realistic as it is given by the actual contractor.

34.  I have considered the Plaintiffs’ submissions. Given that the Expert Report is the Plaintiffs’ own evidence and uncontroverted, I am of the view that there is no basis to reject the assessment in the Expert Report when P’s Expert is not asked to attend court to give evidence. I consider it only appropriate to adopt the assessment therein. As such, I allow the sum of HK$ 49,354.90 as estimated by P’s Expert for item (b).

(2) Costs of alternative accommodation, storage and moving expenses

35.  Costs of alternative accommodation and storage are generally recoverable at law as damages.

36.  As confirmed by Counsel for the Plaintiffs at their closing submissions, the Plaintiffs no longer claim for the incidental expenses of HK$ 22,400 as set out in Mr Yuen’s witness statement. Under this head, the Plaintiffs claim 2 months of alternative accommodation and storage, and moving expenses in the total sum of HK$ 45,576.

37.  The Plaintiffs claim HK$ 31,600 for 2 months’ alternative accommodation at a serviced apartment. I bear in mind that, the estimated costs in the Expert Report has already allowed for 5 days of alternative accommodation in the sum of HK$ 5,000. In view of the estimation by P’s Expert that the Suggested Repair Works alone take up to 8 days, I have reservation about the reasonableness of the amount claimed. I consider 2 weeks to be a reasonable length of time to allow for alternative accommodation. Therefore, I allow HK$ 8,000 under this head, which is on top of the 5 days included in the estimated costs of repairs under the Expert Report.

38.  The Plaintiffs claim a further HK$ 13,976 for storage and moving expenses. They have produced in evidence some leaflets of service providers on the costs involved. I have considered the extent of the Suggested Repair Works and the estimated length of time required to complete them. On a broad-brush approach, I would allow for HK$ 7,000 under this head.

(3) Costs of replacement of furniture and electrical appliances

39.  The Plaintiffs claim HK$ 86,926 under this head of damages. I noticed that there are overlapping items which are claimed under costs of 2017 Works and are already accounted for in the Expert Report. The items claimed are listed in the below: -

Items	Amount (HK$)
Repair of refrigerator	1,820
Refrigerator	33,380
Gas cooker	1,200
Gas cans	6,600
Range hood	4,990
Induction cooker	7,980
Dining table and chairs	7,396
Sofa	8,000
Clothes	4,000
Wardrobe	6,699
Ceiling lights for the kitchen	798
Ceiling lights for the bathroom	798
Ceiling lights for the living room	1,480
Ceiling lights for bedroom	1,785

40.  On the claims relating to the refrigerators, the Defendant cross examined Mr Yuen on the reason why he placed the refrigerator at the same spot after the first ones were damaged by the dripping water. Mr Yuen could not give a satisfactory explanation other than that it was a matter of habit. I do not find it reasonable to allow both the purchase of a new refrigerator and its repair. I also do not find that the amount of HK$ 33,380 claimed for a new refrigerator reasonable. The Plaintiffs have produced the receipt of HK$ 1,820 being the repair costs of the refrigerator, which I would allow.

41.  As for the gas cooker and gas cans, they should be included in the costs of relocating the kitchen in 2017 and I would not allow a further claim for them. The same goes for the costs of the range hood, the induction cooker, and the ceiling lights at the living room which are all already included in the estimated costs of the Expert Report. I would not allow further claims on these items. I will allow HK$ 3,381 for the ceiling lights of the kitchen, bathroom, and bedroom.

42.  I consider the evidence of Mr Yuen regarding the claim of the sofa, dining table and chairs inconsistent. In his witness statement, he claims that they are removed from the living room to make room for the objects from the affected areas of the Property. Under cross examination, Mr Yuen claims that they were bought over 20 years ago and the sofa got mouldy so he had to dispose of it. I consider there is no consistent evidence that those items were damaged because of the water leakage problem. I do not allow the claim of these items.

43.  I also accept the Defendant’s submissions regarding the claim of the wardrobe and clothes. I note that, there is no evidence of the allegedly damaged wardrobe and clothes. This is especially when the Plaintiffs produced a number of photos on each of the affected areas at the relevant times. I find it incredible that no photos were taken on those items claimed by the Plaintiffs. Therefore, I do not allow the claim for these items.

44.  Therefore, I only award the total sum of HK$ 5,201 under this head being (a) the repair costs of the refrigerator at HK$ 1,820, and (b) costs the ceiling lights of the kitchen, bathroom, and bedroom at HK$ 3,381.

(4) Damages for distress, discomfort and inconvenience

45.  Counsel 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 awarded, citing Ieong Cheong Kit v Hossain M Akhtak [2018] HKDC 1295.

46.  In this regard, Mr Yuen’s evidence is that: -

(1) The water leakage problem started in November 2016. Although it has stopped for 6 months in 2018, the water seepage problem has persisted for more than 6 years.

(2) Despite the injunction obtained against the Defendant in July 2019, the water leakage has not stopped up to the date of the hearing.

(3) The Plaintiffs were required to store their clothes and belongings in plastic containers and place them in the living room.

(4) They had to set up containers to collect the dripping water from the ceiling of the affected areas and to monitor and change the containers frequently.

(5) They had to relocate their kitchen and laundry facilities to their backyard.

(6) The water leakage problem often triggers the circuit breaker and the Plaintiffs were worried that the electric sockets in the Property have become electricity hazards.

(7) The Plaintiffs had to put up with the unpleasant and moist environment at the Property due to the prolonged water seepage problem.

47.  Counsel for the Plaintiff submits that HK$ 150,000 is a reasonable sum to be granted under this head and has referred this Court to the two cases: -

(1) Chung Yin Ha v Tse Shui Sam (unrep, DCCJ 2605/2016, 22 February 2019)

(2) Cheung Wu Yan Tao v Chui Siu Har [2020] HKDC 885

48.  Having considered Mr Yuen’s evidence, in particular the duration and the extent of the water seepage, and the great inconvenience caused to the Plaintiffs in the present case, I accept Ms Lee’s submissions and I find that HK$ 150,000 is an appropriate amount to be awarded under this head.

Conclusion

49.  As such, I award damages assessed in the total sum of HK$ 241,655.90 to the Plaintiffs with the amount of each head set out as follows: -

Items	Amount (HK$)
(1) Costs of Repair Works (a) Temporary remedial works done in 2017 (b) Estimated costs for repair works	22,100 49,354.90
(2) Costs of alternative accommodation, storage and moving expenses	15,000
(3) Costs of replacement of furniture and electrical appliances	5,201
(4) Damages for distress, discomfort and inconvenience	150,000
TOTAL:	241,655.90

50.  I also find that, the Plaintiff is entitled to interest on the sum 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.

51.  Costs should follow the event. I give an order nisi that the Defendant should pay the Plaintiffs’ costs of this assessment, to be taxed if not agreed. In absence of any application to vary, the costs order shall become absolute in 14 days from the date of this order.

52.  If the Defendant so requires, court interpreter’s assistance can be arranged for purposes of receiving this judgment.

53.  Lastly, I thank counsel for her assistance rendered to this Court.