LEE LING LING LILIAN v. THE PERSONAL REPRESENTATIVE OF WONG SIU YING ANNE, DECEASED

DCCJ 3611/2020

[2024] HKDC 1152

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3611 OF 2020

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BETWEEN

AND BETWEEN

(by an Order to Carry On made by Registrar M. Soong dated 22 May 2024)

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is an assessment of damages of a water seepage case.

2.  At the material times, the Plaintiff is and was the registered owner of Flat G, 19/F, Block 1, Tanner Garden, 18 Tanner Road, Hong Kong (the “Property”). Prior to 17 September 1999, the 1^st Defendant and the 2^nd Defendant, Wong Siu Ying Anne were the registered owners as joint tenants of Flat G, 20/F, Block 1, Tanner Garden, 18 Tanner Road, Hong Kong, the flat directly above the Property (“D’s Property”).

3.  On 15 July 2020, the Plaintiff commenced the present action for damages against the 1^st and 2^nd Defendants based on nuisance, negligence, and breach of the relevant deed of mutual covenant.

Procedural Background

4.  On 9 September 2020, the Plaintiff discontinued the action against the 1^st Defendant. As on 17 September 1999, the 1^st Defendant passed away and the 2^nd Defendant, Wong Siu Ying Anne had become the sole owner of D’s Property by virtue of right of survivorship.

5.  On 18 March 2021, interlocutory judgment was entered against the 2^nd Defendant with damages to be assessed. The Court has also ordered inter alia the 2^nd Defendant to carry out all necessary repair works at D’s Property within 28 days from the date of the Order and that the 2^nd Defendant be restrained from permitting or allowing water to enter from D’s Property to P’s Property.

6.  On 23 April 2021, the Plaintiff issued a Notice of Appointment of Assessment of Damages. Subsequently, directions were given for the hearing of the assessment of the Plaintiff’s damages in this action. The 2^nd Defendant did not file any evidence in these proceedings.

7.  At the hearing of assessment of damages, the Plaintiff was represented by Counsel. The 2^nd Defendant was not represented and was absent at the hearing. Upon the Plaintiff’s application pursuant to Order 35, rule 1(2) of the Rules of the District Court, Cap 336H, the hearing was conducted in the absence of the 2^nd Defendant.

8.  On 14 March 2024, the Plaintiff took out an ex parte application for a carry on order as Wong Siu Ying Anne has passed away on 8 March 2022. Pursuant to an Order dated 22 May 2024, Cheng Kwok Bun Benson was appointed to represent the estate of Wong Siu Ying Anne as the 2^nd Defendant, for the purpose of carrying on this action.

9.  On 3 July 2024, by parties’ consent, it was ordered that the hearing of assessment of damages conducted on 2 August 2023 do stand. I now proceed to give judgment on the assessment of the Plaintiff’s damages in this action.

The Plaintiff’s Case

10.  Madam Lee Ling Ling Lilian, the Plaintiff gave evidence at the hearing and adopted her witness statement filed on 10 December 2021 as her evidence-in-chief. The gist of her evidence in the witness statement is as follows.

(1) On 8 August 2014, the Plaintiff purchased the Property and since lived therein with her husband, her son, and a domestic helper.

(2) Since sometime in 2016, she discovered there were extensive water stains, with paint bulging and peeling off at the ceiling of the living room of the Property. Later on, the situation worsened and water started dripping from the ceiling.

(3) She also found water seepage in the guest bathroom, which was next to the living room. There were water stains, with paint bulging and peeling off at the ceiling of the guest bathroom.

(4) The Plaintiff reported the water seepage problem to the management office of Tanner Garden and the Joint Office of the Food and Environmental Hygiene Department and the Building Department (the “Joint Office”). On 20 December 2016 and 13 January 2017, the Joint Office investigated the matter.

(5) After their investigation, the Joint Office issued a nuisance notice to the owners of D’s Property on 22 February 2018 (the “Notice”) stating that the guest 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 slab and walls of the shower area of the guest bathroom.

(6) Despite the Notice, the 2^nd Defendant failed to rectify the problem and the water seepage problem persisted and deteriorated.

(7) Sometime in October 2018, water dripping at the ceiling caused the lights at the guest bathroom of the Property to go out. P had to engage an electrician to repair the problem and to hang a bucket at the ceiling to collect the water dripping.

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

11.  I have considered the Plaintiff’s evidence, which is unchallenged by the 2^nd Defendant. The Plaintiff also produced photos and contemporaneous records which supports her evidence. I accept her evidence as summarised in the above on the extent of the water seepage and the damage at the Property.

12.  On the other hand, the Plaintiff has sought to rely on an expert report made by one Lau Shan La of the Hong Kong Survey Limited dated 14 February 2020. However, I note that, there were no directions sought and no leave was granted to the Plaintiff for adducing expert evidence in these proceedings. Therefore, I shall not consider the contents of the said report in this assessment.

The Plaintiff’s Claim

13.  As pleaded in the Amended Statement of Claim and submitted in the opening submissions, the Plaintiff claims for the following heads of damages: -

(1) Costs of remedial and cleaning works

(2) Costs for alternative accommodation

(3) Damages for distress, discomfort and inconvenience

14.  The applicable legal principles are well established and should not be of dispute: -

(1) In a case of nuisance where physical damage is caused to the land, the damages could be measured by the cost of replacement / reinstatement or the cost of abating the nuisance. (McGregor on Damages, 21^st Edition, §39-017 at [1249])

(2) There could also be damages for the annoyance, inconvenience, discomfort, or even illness to the claimant. Recovery in respect of these principally non-pecuniary losses is allowable and can be regarded as part of the normal measure of damages in cases where the claimant has been disturbed in the occupation of their home. (McGregor on Damages at §39-020 at [1251])

(3) A claim of nuisance is a continuing cause of action and by virtue of Order 37 rule 6 of the Rules of District Court, Cap 336H, damages could be assessed from the date of the nuisance occurred down to the date of the assessment.

15.  Bearing those principles in mind, I shall deal with each of the heads of the damages in the below.

(1) Costs of Remedial and Cleaning Works

16.  Damages for costs of repair are generally recoverable for the physical damage caused to the Property. In the present case, the Plaintiff claims damages for (a) the costs of engaging an electrician in 2018; (b) the estimated costs to repair the damaged areas at the Property and (c) costs for cleaning up after the remedial works.

17.  In respect of item (a), the Plaintiff claims HK$ 400 for the costs incurred in engaging the electrician in October 2018 to carry out emergency repair at the guest bathroom of the Property. Although the Plaintiff did not produce any receipts, I accept that is a reasonably small sum which is actually incurred by the Plaintiff. I would allow the sum in full.

18.  As for item (b), the Plaintiff claims damages for the estimated costs to repair the damaged areas at the Property.

19.  The Plaintiff produced a quotation from a contractor, Ka Wah Water & Electrical & Air Cond. Works, dated 26 November 2021 for repairing the damage in the Property (the “Quotation”). The Quotation included work items of replacing the ceiling conduit, repairing the ceiling cement finish, repainting the whole living room, and putting on protective layer for the furniture in the living room. Costs for carrying out all those works was estimated to be HK$ 21,000.

20.  At the hearing, the Plaintiff supplemented that at the time she was told the repair works as set out the Quotation would require around 20 days to complete. She also gave evidence that, due to inflation the repair works done by the same contractor is now estimated to cost HK$ 42,000.

21.  I am of view that the estimated repair costs given by the Plaintiff at the hearing shows a significant increase from the Quotation produced. Whilst Counsel for the Plaintiff submits that the estimation is reasonable and should be allowed, he accepts that no updated quotation was produced for the present hearing and the Plaintiff would rely on the Quotation produced. As such, I would only accept the Plaintiff’s evidence given in her witness statement, which is supported by the Quotation obtained, and I award HK$ 21,000 as damages for estimated costs of repair.

22.  As for item (c), the Plaintiff claims HK$ 1,600 as costs for cleaning up the affected area after the repair, which reflects 8 hours of work by a cleaning worker with an hourly rate of HK$ 200. I find that a reasonable sum and I allow it in full.

23.  Therefore, I find that the Plaintiff is entitled to a total sum of HK$ 23,000 under this head.

(2) Costs of Alternative Accommodation

24.  Costs of alternative accommodation are generally recoverable at law. (See Chan Albert Koon Keung and Ors v Yee Yun Tung [2020] HKDC 1201 at §21)

25.  The Plaintiff claims that, she would need 2 twin rooms to accommodate 4 people for 20 days. In her witness statement, she has produced an online enquiry of a hotel in North Point in the vicinity of the Property which stated that the price of a room per night would be HK$ 720.

26.  At the hearing, the Plaintiff gave evidence that the rate of the same hotel room has increased to HK$ 1,914 per night. Whilst I am aware that hotel rates fluctuate, I find that the claimed increase of hotel rates to be significant. Therefore, I do not accept the Plaintiff’s evidence in this regard as there is no evidence produced in support of her claim. On the available evidence before me, I award HK$ 28,800 (being HK$ 720 × 2 rooms × 20 nights) under this head.

(3) Damages for Distress, Discomfort and Inconvenience

27.  It is submitted 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 award, relying on John So and Anor v Lau Hon Man and Ors [1993] HKC 356 at 358I and 359G.

28.  In this regard, the Plaintiff gave evidence that: -

(1) The water seepage problem has persisted since 2016 for 6 years and has only stopped sometime in January 2023.

(2) The water leaking from the conduit at the living room ceiling has damaged the lighting system and posed electricity and fire risks. The Plaintiff had been unable to switch on the lights at the living room of the Property throughout the years.

(3) The water dripping at the living room was so serious that buckets were hung at the ceiling to catch the water. The Plaintiff had to take measures to cover and protect the personal belongings and furniture at the Property. She also had to frequently clean the affected areas.

29.  Counsel for the Plaintiff has drawn my attention to two cases which he submits to be similar to the present case in terms of the duration and severity of the water seepage problem: -

(1) Chung Yin Ha v Tse Sui Sam [2019] HKDC 139

(2) Lam Ting Kwan v Teamwell Corporation Ltd [2019] HKDC 1593

30.  I have considered the Plaintiff’s evidence in this regard and I accept the Plaintiff’s submissions. I am of the view that a sum of HK$ 100,000 is an appropriate amount to be awarded under this head which reflects the length, degree and extent of the water seepage and the lack of action on the part of the 2^nd Defendant over the years.

Orders Made

31.  Accordingly, I assess the damages and award the total sum of HK$ 151,800 to the Plaintiff.

32.  I also find that, the Plaintiff is entitled to interest on the sum awarded at 1% above the best lending rate of HSBC from the date of writ to the date of judgment, and thereafter at judgment rate until payment in full.

33.  Costs should follow the event. I order that, the Plaintiff do have costs of the assessment with certificate for counsel. Having considered the Statement of Costs filed by the Plaintiff’s solicitors on 16 August 2023, I summarily assess the Plaintiff’s costs at HK$ 113,946.