MA KIN MAN v. LAM CHAK TIN

DCCJ 3897/2017

[2020] HKDC 748

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3897 OF 2017

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ASSESSMENT OF DAMAGES

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1.  This is a water seepage case. An interlocutory judgement on liability has been entered by consent against the defendant on 4 April 2018. This is the assessment of damages.

2.  The plaintiff and his elder sister Ma Lai Kuen (“the plaintiff’s sister” or “his sister”) give evidence for the plaintiff’s case and the daughter of the defendant Lam Ka Wai gives evidence for the defence case.

3.  The parties have engaged surveyors to assess the damage and estimate the repair costs.  They conducted a joint inspection on 2 March 2017 (“the Joint Inspection”).  The plaintiff’s surveyor Mr Wong Shun Tai Stewart (“Wong”) produced his report dated 11 April 2017.  The defendant’s surveyor Mr Choi Kam Ping (“Choi”) produced his report dated 6 July 2017.  They prepared an undated Joint Statement.  They give oral evidence in this assessment.

The facts

4.  The plaintiff has been the registered owner of Flat C, 30^th Floor, Block 2, Kornhill Garden, No 1112 King’s Road, Kornhill, Hong Kong (“Flat 30C”).  He has been living there since the occupation permit was issued for that building in 1987.  The plaintiff’s sister also resided there at the material times.

5.  Flat 30C has a gross area of 711 square feet.  It has a living and dining room (Living Room”), 3 bedrooms, a kitchen, a bathroom and a corridor.

6.  On about 16 July 2016, water began to seep through and drip from the ceiling of the corridor, kitchen, bathroom and the 3 bedrooms of Flat 30C.  Water also dripped along various walls.

7.  Tests conducted by Food and Environmental Hygiene Department on 4 August 2016 showed the kitchen floor drainage pipe of Flat C on 31^st Floor (“Flat 31C”), the flat directly above, was damaged and water leaked therefrom.

8.  Flat 31C was owned by the defendant.

9.  Further and thorough tests conducted on 26 August 2016 by Silver Consultants Engineering Limited^[1], who was engaged by the defendant, revealed that

(a)  the fresh water supply pipe of Flat 31C, which was embedded in the floor slab, was damaged, thereby causing seepage to extensive areas of the ceiling of Flat 30C;

(b)  water seeped from the bathroom floor of Flat 31C to Flat 30C; and

(c)  The kitchen floor drainage pipe of Flat 31C on the external wall was damaged and water leaked therefrom.

10.  Shortly after, in late September 2016, the defendant engaged a contractor to undertake repair works which were finished in early October 2016.  Then after, the seepage had stopped, but damage caused by the seepage was done to Flat 30C.

11.  It is common ground that the plaintiff has been living in Flat 30C since 1987 without any major renovation.  He has a minor renovation more than 10 years ago.  On that occasion, certain minor works were done to the kitchen and the bathroom including, among others and material to the parties’ present disputes, the installation of a false ceiling in the bathroom and the re-painting of the kitchen ceiling.  It is accepted by the plaintiff that no maintenance work has ever been done to the teak parquet flooring since 1987.  As can be seen from the photographs produced, and I think it can be fairly so described, the general condition of Flat 30C was quite decrepit.

12.  It is also common ground that the plaintiff intended to completely renovate Flat 30C, for which he has obtained a quotation in late February 2017.

Legal principles

13.  The relevant principles are trite.  The loss to be compensated must be caused by the tort in that it is the natural consequence of the tort.  Whether for negligence, nuisance or breach of the DMC, an award of damages made by the court aims at restitutio in integrum, and only such damages as are “fair and just” are to be awarded.  The costs of repairs must be reasonable in that the work must be necessary and the charges must not be extravagant.  (McGregor on Damages 20^th ed §37-006; Fong Po Shan Eunice & Another v Chung Wing Cheung Vincent and Another DCCJ 4063/2009, unrep, 26 January 2011, HHJ Mimmie Chan (as she then was))

Matters undisputed

14.  At trial, the plaintiff confirms through counsel that he is not claiming any general damages, and the items and amounts claimed are those agreed and set out below in the next paragraph and those disputed and set out in the Agreed Scott Schedule; while the defendant through counsel indicates that he is not pursuing the defence that the plaintiff failed to mitigate.

15.  The following items and their amounts are agreed to by Wong and Choi and agreed by the parties:-

Replacement of the MCB main box, electrical wiring, lighting and electric sockets	HK$18,000
Replacement of the aluminium false ceiling in the bathroom	HK$3,500
Costs of debris removal	HK$3,000
Damaged rice cooker	HK$500
Damaged painting	HK$150
Total:	HK$25,150

The costs of painting Flat 30C

16.  Wong opines the total costs at HK$50,000 – being 2,500 square feet (his estimate of the total area of the ceiling and walls in Flat 30C) times HK$20 per square foot.

17.  Not disputed by the defendant is that damages ought to be awarded for re-painting Flat 30C and the said estimate of total area of 2,500 square feet.  Choi opines the total costs for a complete re-paint should be HK$40,000.  The defendant also contends that 2 of the walls in the Living Room were wholly unaffected by the seepage and they need not be re-painted, which he says would bring the total costs down to HK$30,000.

18.  It is not seriously disputed that at the later stage of the seepage water also seeped through and dripped from the ceiling of the Living Room, albeit the seepage there might not be as serious as that on the ceiling of the corridor.  That being so, I think it likely that part of the paint on the walls in the Living Room might also be affected.  Furthermore, aesthetically speaking, it would be very odd and not pleasing that the entire flat would be re-painted except those 2 walls.  In any case, I do not think it would save as much as HK$10,000 if the two walls are not painted; I would rather think that the saving would not be much.  I think it reasonable that the costs for painting the entire flat should be awarded.

19.  Wong says in evidence that the estimated unit cost is HK$20 per square foot because he thinks that Kornhill is a nice and quite expensive area and the painting job should be of commensurately high quality.  However, considering that the general condition of Flat 30C was quite decrepit before the seepage, it having had over 30 years of use, and the principle being restitutio in integrum, I would award such repair costs as to reflect such lower quality.  Wong says the price range for such lower quality is HK$12-15 per square foot, while Choi says HK$14-15 per square foot. Taking HK$15 per square foot as the unit cost, 2500 square feet would cost HK$37,500.

20.  I therefore prefer the figure of HK$40,000 advanced by Choi and would so award.

Costs of repairing the binding concrete on the ceiling

21.  The pictures produced by parties show that a large patch of the concrete on the ceiling of the kitchen was spalled and fell off, exposing several heavily rusted reinforcement steel bars.  There was also shown similar damage at one corner of the ceiling in the bathroom.  Wong opines that the seepage has caused them.  He estimates the repair costs would be HK$24,000 – being HK$8,000 per patch for 3 patches.

22.  When asked which 3 patches, he says that they consist of the one in kitchen, the one in the bathroom, and a third patch on the ceiling of the corridor even though such damage there is not at all visible.  He says it is his opinion that such damage to the ceiling in the corridor is likely developing, but he admits that in the Joint Inspection, he had not tried to knock on the ceiling of the corridor to judge from the sound of the knock if there was hollow space developed underneath, which is a common and simple method for checking.  He has not mentioned that he has used other method to check and confirm such suspected damage.

23.  Choi opines that such damage must be pre-existing, bearing in mind that the building was over 30 years’ old and also that it would take a long time for such heavy rust of the reinforcement bars to develop.

24.  Considering and based on the following matters, I make the finding that the damage to the concrete of the ceiling in the kitchen and the bathroom was pre-existing:-

(a)   From a picture taken by Lam Ka Wai on 26 August 2016 depicting up-close the patch on the ceiling of the kitchen[2],

(i)    it is shown that next to a large grey patch there was a smaller patch with the binding concrete lost and the reinforcement steel bar exposed.  That smaller patch however was white in colour and not grey.  Wong says that, from looking at the photograph, it might have been painted over with white paint or somehow patched over with white substance.  As it is common ground that the plaintiff has not undertaken any repair work since the seepage, that patch must have been painted over or work must have been done thereon sometime before the seepage; and

(ii)  it is shown that the grey patch already existed on 26 August 2016, which was only slightly over a month after the first seepage occurred.  That was much earlier in time than what Wong opines in his report in April 2017: “After 7 months duration of water seepage … the reinforcement bars … had been corroded”[3] (my emphasis).

(b)  From two photographs taken by Wong in the Joint Inspection depicting the ceiling in the kitchen[4], it is shown that of the 4 rusted reinforcement bars exposed, at least 2 of them were surrounded and engulfed by an oval shape white patch.  Wong says that the white patch was probably limestone powder mixed with some gel which painting worker would apply to patch holes or uneven surfaces.  Again, as no repair work has been done from the time the seepage began to the Joint Inspection, they must have been so patched sometime before the water seepage.

(c)   It is common ground that the plaintiff and his sister had not moved out but continued to live in Flat 30C while the seepage was occurring and continuing.  It is also evident that the plaintiff (and/or his sister) has been writing many letters to the building management, among others, to complain about the seepage[5]. In one such letter dated 22 September 2016 enclosing a number of pictures[6], the plaintiff’s sister complained that “powder fell from various parts of ceiling in the flat” (現在屋裏多處的地方天花表面有粉狀物不斷飄下).  In one of the pictures there enclosed[7], it was shown that the binding concrete of the kitchen ceiling was loss exposing the rusted reinforcement bar, but in respect of what was depicted there it was only complained that “powder has been dropping from the kitchen” (廚房飄下粉末).  Two enclosed pictures depicted debris on the kitchen floor in the form of white plaster[8] and not spalled concrete. Thus, these pictures did not show nor the plaintiff complained about the falling off of concrete.  This must be contrasted with the fact that the patch of loss of concrete on the ceiling of the kitchen indeed was very large in area – about 4 feet long and 2 feet wide.  Had the concrete fallen off in the period during or after the water seepage and before the Joint Inspection, it would be very highly probable that the plaintiff and/or his sister would have noticed it, would have recorded it with pictures, and would have made written complaints.  There was however none of these proffered in evidence.

(d)  In the same vein, had concrete fallen off the ceiling in the bathroom after the seepage began, the plaintiff and/or his sister would have noticed it, recorded it and complained about it.

(e)   Moreover, the plaintiff and his sister have not in their witness statements spoken about any incident concerning the falling off of concrete from the ceiling.

(f)    From the above, I conclude on balance of probabilities that at the time when the plaintiff did the minor renovation over 10 years ago (which included painting the kitchen ceiling), there was already some concrete fallen off the ceiling exposing the reinforcement bars and the painter on that occasion patched and painted over them.

(g)  I also prefer the opinion of Choi that such heavy and extensive rusting of the reinforcement bars to a point where the concrete was pushed apart and spalled could not have happened in such short time interval (from mid July to 26 August 2016).

25.  I therefore reject the plaintiff’s claim in relation to this item.

Costs of replacing the aluminium kitchen window

26.  For this, the plaintiff claims the costs of putting up a scaffolding at HK$5,000 and the costs of replacing the window at HK$5,000, totalling HK$10,000.  Initially, the plaintiff also claims the costs of repairing a small crack found along the kitchen window lintel on the external wall at another HK$5,000.  This latter sum however is no longer claimed at trial.

27.  When giving oral evidence, Wong justifies the claim thus.  He says that the upper part of the aluminium kitchen window was made crooked/bent by the cracking of the window lintel on the external wall, which according to him, apparently exerted such pressure on the aluminium window that the upper part of the window was made crooked.  Wong refers the court to a picture depicting the upper part of that window[9].

28.  This court cannot observe from the picture such alleged crookedness or bend in the window.  Wong then explains that one can perceive the bend if one applies a ruler on the picture.  However and when pressed, he admits that at the time of the Joint Inspection he had not applied a ruler along the part of the window he says has been bent to show or to confirm such damage.  Also and notably, this alleged damage to the window was not even mentioned in his report at all.   Moreover, Wong confirms, when asked, that directly above the window was the concrete beam.  Thus, there seems to be little likelihood that the small crack in the external window lintel could crook or bend the window.  Wong then tries to justify that the window needs to be replaced because it was “rotted” by the seeping water from Flat 31C.  When pressed, he explains that by “rotted”, he means oxidized.

29.  Choi says that there was no such damage as alleged and that the oxidization of the window was normal aging or wear and tear of the window.

30.  I have no hesitation in rejecting the evidence of Wong about the alleged damage to the window as being not credible or reliable.  I prefer the evidence of Choi.  I reject the plaintiff’s such claim.

Replacing part of the teak parquet flooring

31.  The plaintiff claims such costs calculated at HK$80 per square foot times 300 square feet – being the total area of the floor of the 3 bedrooms and the corridor – totalling HK$24,000.  The defendant accepts that the teak parquet flooring in the corridor (measuring 60 square feet) was damaged by the seepage, but says that the poor condition in the flooring in the 3 bedrooms was due to aging and poor maintenance.

32.  Wong opined about this item in the Joint Statement generally thus “After 7 months water dripping, the teak timber flooring, various places have been soaked, dampened, blackened, loosened and damages”[10].

33.  In this regard, I do not accept the plaintiff’s, his sister’s or Wong’s evidence to the extent that they suggest Flat 30C has been so soaked by the seepage as to be flooded.  I note that it has never been so complained in the letters written by the plaintiff or his sister[11].  If they so suggest, I hold that they are exaggerating.

34.  I note from Wong’s report that there he has never given any specifics – such as, which area of the flooring in which room suffered from which kind of damage (among the many he mentioned – soaked, dampened, blackened or loosened).

35.  Choi’s evidence, which is not disputed and I accept, is that during the Joint Inspection he has walked through the entire Flat 30C to inspect the flooring while Wong has not done so.  Choi found that only the flooring in the corridor was blackened by water and loosened.

36.  At trial, Choi refers the court to the condition of the flooring in the Living Room as depicted by a photograph he has taken in the Joint Inspection[12] as a reference point for comparison.  This is so as according to the evidence of the plaintiff, the flooring in the Living Room has not been damaged by water.  I accept Choi’s evidence that if one compares the condition of the flooring in the 3 bedrooms with that in the Living Room, one does not find an appreciable difference. 

37.  Choi is cross-examined by Ms Choy, counsel for the plaintiff, in relation to certain photographs depicting the rooms showing the flooring underneath the bed was darker in colour.  It was asked that those showed that the flooring has been blacked by water dripping from the walls onto the floor.  In this regard, I accept Choi’s opinion given in answer that if those were the blackening of the flooring caused by water damage, then the edge of the blackening could and should not be so uniform as to form a straight line running along the edge of the beds; and that such straight edge seems to him to be showing the boundary delineating the flooring which was not regularly cleaned or maintained under the bed and the flooring of the exposed area not covered by the bed where it was regularly cleaned or maintained.

38.  In all, I accept Choi’s evidence and find that the flooring in the 3 bedrooms has not been damaged by the seepage.  I therefore take the view that the repair costs should only cover the 60 square feet flooring of the corridor.

39.  However, the court is to award what is fair and just.  It seems to me that only awarding the repair costs would mean that the plaintiff has not been restored to the original condition in that now part of the flooring looks very different from the rest.  Evidently, awarding a sum to the plaintiff to replace the entire flooring would be unfairly excessive.  As discussed with counsel during their final submissions, it seems to this court that a fair and just award is to award, on top of the repair costs, another lump sum to cover this aspect of the plaintiff’s loss.  The plaintiff contends for a lump sum at HK$12,000 as just, while defendant says HK$8,000.  This is no exact science and the court approaches this in a broad brush.  Bearing in mind that the flooring in Flat 30C was originally in generally poor condition, I would award HK$8,000 for this sum.

40.  Thus, I would award HK$80 x 60 square feet + HK$8,000 = HK$12,800.

Replacing 5 sets of doors and door frames, or repair costs

41.  The plaintiff claims the costs of replacing 5 sets of doors (including the door frames), namely the doors for the 3 bedrooms, the kitchen and the bathroom at HK$4,000 each totalling HK$20,000.

42.  Wong opines that they need replacing as they would have been damaged by water.  However, the pictures depicting the doors do not show any such damage.

43.  When asked, all Wong can say is that there were visible water marks on these doors and the door frames.  He further confirms that neither of the door frames or the doors exhibited visible signs of substantial damage like blackening, softening or expanding.  He further says that there were some minor cracks in some of the doors.

44.  Choi’s evidence is that these doors and door frames only need minor repairs and some re-painting, in the total costs of HK$5,000.

45.  I accept the evidence and opinion of Choi. Bearing in mind the already run-down state of Flat 30C, I think awarding the costs for their repairs is reasonable.  I would award HK$5,000 as opined by Choi.

Replacing the hanging cabinet in the kitchen

46.  It is a small cabinet.  It is not disputed that it was damaged by seepage and needs replacing.  The plaintiff says HK$4,000 and the defendant HK$2,000.  I would award HK$3,000 as being reasonable.

Costs for demolition work and the removal of debris

47.  The plaintiff claims such costs in relation to the 5 sets of doors at the total costs of HK$3,380 and in relation to the 300 square feet of flooring at HK$12,000.  In view of my findings above, only such costs in relation to the 60 square feet of flooring in the corridor should be awarded.  According to the plaintiff’s calculation and unit costs, it would be HK$20 per square foot times 60 = HK$1,200.

48.  Both Wong and Choi agree that nowadays to engage a contractor to demolish and to remove debris, there is an understanding that the contractor would charge some sort of a “minimum amount” even though the actual work is not much.

49.  Choi makes the point, however, that similar costs relating to the re-wiring of the entire flat, the replacement of the aluminium false ceiling and replacing the hanging cabinet in the kitchen have been agreed at HK$3,000.

50.  It seems to me therefore that this additional HK$1,200 could be added to that HK$3,000 to pay the same contractor to do all these demolition works and removal of debris together in one go, thereby satisfying the “minimum amount requirement”.  I thus award HK$1,200 under this head.

Hotel accommodation for the plaintiff and his sister while the repairs are carried out

51.  The defendant contends that it is reasonable to only provide one hotel room for the plaintiff and his sister to stay in.  It is however not disputed that each of them has been occupying a room in Flat 30C. I therefore find against the defendant’s such contention.

52.  The defendant has provided the internet search results of various hotels and their costs.  It is not seriously disputed that a room in a 3-star hotel in the Hong Kong East area costing HK$600 a night is reasonable.

53.  The plaintiff contends that 15 days is a reasonable duration in view of the repairs work awarded above.  The defendant contends a duration of 9 days is reasonable.

54.  The main contention by Wong on behalf of the plaintiff is that as new tubes are required to be embedded for the re-wiring of the electric wires, extra time would be required for embedding the new tubes and the painting work could not begin until after the tubes are embedded.  However, I note that the parties agreed the sum of HK$18,000 for “Replacement of the MCB main box, electrical wiring, lighting and electric sockets”, which does not include re-tubing.  The quotation of the contractor[13], however, quoted HK$45,000 for the costs of performing similar works plus re-tubing.  Thus, the re-tubing is an additional work the plaintiff wishes his contractor to undertake, and not an item to be paid by the defendant.  I would therefore not count the extra time necessitated by the re-tubing, and would think a period of 9 days is reasonable.

55.  I would thus award HK$600 x 2 x 9 = HK$10,800.

Summary of awards

56.  The amounts awarded are:-

Agreed items	HK$25,150
The costs of painting Flat 30C	HK$40,000
Replacing part of the teak parquet flooring	HK$12,800
Repair costs of 5 sets of doors	HK$5,000
Replacing the hanging cabinet in the kitchen	HK$3,000
Demolition and removal of debris	HK$1,200
Hotel accommodation	HK$10,800
Total:	HK$97,950

Disposal

57.  In the premises, I assess the total amount of damages to be paid by the defendant to the plaintiff at HK$97,950.

58.  According to the plaintiff’s sister, repairs work of Flat 30C were undertaken after Chinese New Year of 2019.  I would award interest at the Prime Rate from 1 February 2019 until the date of this judgment and then after at Judgment Rate until full payment.

59.  I make a costs order nisi that the defendant do pay the plaintiff costs of this assessment, with certificate for counsel, to be taxed if not agreed.  This will become absolute unless within 14 days any party applies to vary.

60.  I thank both counsel for their assistance.