CHAN ALBERT KOON KEUNG AND OTHERS v. YEE YUN TUNG

DCCJ 3071/2017

[2020] HKDC 1201

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3071 OF 2017

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is the hearing for assessment of damages.  The Plaintiffs’ claim is for loss and damage suffered from water leakage/seepage at their property (“the Property”) by reason of the Defendant's breach of mutual covenant, negligence, trespass and/or nuisance and the principles in Rylands v Fletcher.

2.  The Plaintiffs’ case is unchallenged.  The Plaintiffs are the registered owners of the Property situated immediately below the Defendant’s premises.  Water seepage since 30 January 2016 at the Property damaged its ceiling, fixtures, fittings and furniture.  The surveyor engaged by the Plaintiffs identified the source of water leakage to be the water pipes of the Defendant’s premises with defective or ineffective waterproof works.

3.  The Plaintiffs obtained interlocutory judgment with an order for assessment of damages.  They now seek to recover costs for remedial works, alternative accommodation and storage costs during remedial works and damages for distress, discomfort and inconvenience.

4.  In the present hearing, Mrs. Chan (2nd Plaintiff) testified for the Plaintiffs and the Plaintiffs adduced 2 expert reports prepared by their surveyor both dated 21 January 2017.  The Defendant is absent and no evidence has been adduced from the Defendant.

The Evidence

5.  According to Mrs. Chan, she and her husband, Mr. Chan (1st Plaintiff) lived in the Property.  Water seepage was first discovered at the Property in mid-2013 at the ceilings of the master bedroom and kitchen.  It stopped in July 2014 after a nuisance notice from the Buildings Department / Food and Environment Hygiene Department Joint Office (“the Joint Office”) was issued to the Defendant.

6.  Water seepage resurfaced since 30 January 2016 with water dripping from the ceiling of the kitchen and it extended to the entrance, guest bedroom, dining room and living room of the Property.

7.  She had made repeated attempts herself and through the Joint Office and the Plaintiffs' solicitors to request the Defendant to stop the water seepage but the Defendant evaded and failed to co-operate.

8.  She engaged Hong Kong Survey Limited (“HKSL”) to inspect and identify the source of the water seepage, HKSL in the inspection report dated 21 January 2017 concluded that the water seepage originated from the Defendant's premises.

9.  Further inspections on 26 January, 24 July and 11 October 2018 by the consultancy firm instructed by the Joint Office confirmed that the water seepage problem remained unsolved. 

10.  The water seepage continued until now.  The ongoing water seepage had caused persistent distress, discomfort and inconvenience to her and her husband with details to be further discussed hereinunder.

11.  She obtained a quotation from the contractor for the remedial works on 13 August 2018, the costs were estimated to be HK$242,630.

12.  In the inspection report dated 21 January 2017 (“the Source Report”), Ms. Lau from HKSL concluded that the water seepage originated from the Defendant’s premises and was caused by the failure of waterproofing layer in the bathroom of the Defendant’s premises.  Different areas of the ceiling of the Property (including the entrance, dining room, living room, master bedroom, master bathroom, guest bathroom and kitchen) were damaged by the water seepage.

13.  In another report also dated 21 January 2017 (“the Loss Report”), Ms. Lau estimated the costs of remedial works to the areas damaged by the water seepage to be HK$122,719.33.

14.  Evidence of Mrs. Chan and the 2 reports prepared by Ms. Lau are unchallenged.  I also consider such evidence to be reasonable and credible.  I accept the evidence of Mrs. Chan in full.  I also accept Ms. Lau as an expert in the field of water leakage and her findings in the 2 reports.

Costs of Remedial Works

15.  The Plaintiffs claim the sums of HK$242,630 as costs of remedial and incidental works and HK$2,000 as the costs of removing cement on 24 July 2018.

16.  The remedial works would cover the areas damaged by the water seepage as specified in Ms. Lau’s reports.

17.  While the items in the quotation dated 13 August 2018 are unchallenged, it is noted that the costs estimated in the quotation are higher than that in the Loss Report.

18.  Mrs. Chan explained that the costs in the quotation was higher because of inflation and further damage due to the persistent water seepage.

19.  In my view, Ms. Lau’s estimation was over 1 year before the contractor’s quotation, explanation given by Mrs. Chan is entirely reasonable.   I accept the sum of HK$242,630 to be reasonable and should be recoverable by Plaintiffs.

20.  During the inspection on 24 July 2018 by the consultancy firm instructed by the Joint Office, Mrs. Chan was warned and advised to remove parts of the ceiling of the master bedroom and kitchen as soon as possible as the cement was loose and could collapse anytime.  She immediately instructed a contractor to remove those parts.  The work costed HK$2,000.  This sum is reasonable and clearly recoverable by Plaintiffs.

Alternative Accommodation and Storage Costs

21.  Such items are recoverable at law as can be seen in cases like Lee Wai Chuen & Anor v Cheung Chor Keung & Anor (DCCJ 3098/2006, 7 January 2011) and Chung Yin Ha v Tse Shui Sam (DCCJ 2605/2016, 22 February 2019) and 886HK Limited & Anor v Amja Nadeem (DCCJ 3113/2012, 19 April 2018).

22.  The remedial works would take approximately 29 days to complete and alternative accommodation and storage of furniture and personal belongings would be necessary. 

23.  From the quotations produced for hotel accommodation in the vicinity of the Property, the costs range from HK$43,730 to HK$50,625 for 29 days.  I accept the sum of HK$48,000 to be reasonable given that costs of hotel accommodation fluctuate and recoverable by the Plaintiffs.

24.  Quotations produced for storage with the required size in the vicinity of the Property cost about HK$7,228 per month, I consider the sum of HK$9,000 which would include moving costs of the furniture and personal belonging to be reasonable and recoverable by the Plaintiffs.

Damages for Distress, Discomfort and Inconvenience

25.  According to Mrs. Chan, since January 2016, the persistent water seepage had caused her and her husband distress, discomfort and inconvenience.

26.  Plastic covers had to be put up in the master bedroom and the kitchen which required replacement every 2 to 3 months.  She and her husband had to devise and install a water removal system to get rid of water and sediment.  At one point, the door to the dining room could not be closed.  For a period of time, she had to clean puddles of water in the dining room and outside of the front door on a daily basis.  She had been suffering from coughs and skin allergies due to the mould in the ceiling of the master bathroom.  Mr. Chan had been suffering from nose allergies due to the repulsive smell caused by the water seepage.  The repulsive smell also affected the couple's general well-being and social lives.  Guests were reluctant to visit or stay in the Property.

27.  Miss Lee, counsel for Plaintiffs, submits that this item is recoverable at law which I accept and the sum of HK$80,000 is reasonable, she draws to my attention the following cases:

(i)  In Leung Yung Chun v Chan Wing Sang [2001] 1 HKLRD 456, HK$80,000 was awarded for water leakage lasting nearly 2 years.

(ii)  In Chung Che Sun v Dong Sai Ming Fernando (DCCJ 21504/2001, 15 February 2007), HK$80,000 was awarded for water leakage affecting 3 bedrooms for about 2 years.

(iii)  In Wong Hon Hung & Anor v Jolly Birds Limited (DCCJ 5341/2006, 24 June 2008), HK$50,000 was awarded for water leakage lasting for about 1 year.

(iv)  In Chung Yin Ha v Tse Shui Sam (supra), HK$100,000 was awarded for water leakage lasting for 4 years.

28.  I find the above authorities to be useful as references.  Considering that the water seepage problem began since 30 January 2016 and the sufferings of Mr. and Mrs. Chan, I accept the sum of HK$80,000 to be reasonable and recoverable by the Plaintiffs.

Conclusion

29.  I order that the Defendant do pay the sum of HK$381,630 to the Plaintiffs with interest thereon at the best lending rate of HSBC plus 1% from the date of the Writ of Summons until the date of this judgment and thereafter at judgment rate until payment.

30.  Costs should follow the event.  I make an order nisi that the Defendant do pay the Plaintiffs costs of the assessment of damages (including all costs reserved) with certificate for counsel, to be taxed if not agreed.  The costs order shall become absolute in the absence of any application to vary within 14 days.