CHOI KIN CHING AND OTHERS v. WILSON CHUA

DCCJ 3107/2018

[2022] HKDC 1354

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3107 OF 2018

--------------------

--------------------

-------------------------------------------

ASSESSMENT OF DAMAGES

-------------------------------------------

Background

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

2.  The 1^st and 2^nd Plaintiffs were the registered owners of a residential unit on 24^th floor (“the Lower Unit”). They commenced this action on 17 July 2018 and claimed for the repairing costs, the costs for damaged furniture and appliances and other damages to be assessed resulted from water leakage from the upper unit (“the Upper Unit”), where the Defendant was the registered owner.

3.  No notice of intention to defend had been given by the Defendant. An interlocutory judgment was entered on 7 November 2018 that the Defendant do pay the 1^st and 2^nd Plaintiffs damages to be assessed and costs.

4.  By an order of Master Jacqueline Lee dated 5 August 2019, leave was granted to add the 3^rd Plaintiff, i.e. the tenant of the Lower Unit in this action. On 18 October 2019, an interlocutory judgment was also entered against the Defendant that the Defendant do pay the 3^rd Plaintiff damages to be assessed and costs since no notice of intention to defend had been given by the Defendant.

5.  The 1^st, 2^nd and 3^rd Plaintiffs (“the Plaintiffs”) filed list of documents, supplemental list of documents, two witness statements and one expert report prepared by Mr. Edmund Chiu (“Mr. Chiu”) in support of the assessment of damages. The Defendant was absent throughout these proceedings and did not file any documents in opposition of the assessment.

6.  The Plaintiffs filed three affirmations of service by Ho Chin Cheung on 7^th July, 11^th and 25^th November 2022 respectively. I was satisfied that the notice of the hearing, the hearing bundle and the Plaintiffs’ opening submissions had been duly served on the Defendant. The Defendant had notice of the trial of the assessment but was still absent. I decided that the assessment of damages be held in the Defendant’s absence.

The Evidence

7.  The Plaintiffs called two witnesses in the assessment. The Plaintiffs also relied on the expert evidence of Mr. Chiu in the expert report of Kit Property Surveying and Loss Adjuster dated 3 August 2021 (“the Expert Report”). By the Order of Master B. Mak on 12 October 2021 (“the Order of Master B. Mak”), the Plaintiffs have leave to adduce the evidence in the Expert Report without calling the maker thereof.

The 1^st Plaintiff’s Evidence

8.  The 1^st Plaintiff testified before the Court. It was the 1^st Plaintiff’s evidence that he was informed by the 3^rd Plaintiff of the water leakage in or about February 2018. He inspected the Lower Unit and found that there were water stains in the ceiling of the dining area and the kitchen. The furniture and the appliances i.e. the kitchen cabinets, the ceiling, the cooker and the exhaust hood were damaged.

9.  Upon the request of the 3^rd Plaintiff, the 1^st Plaintiff engaged a contractor “建富工程” (transliterated as “Kin Fu”) to repair the fixtures in the kitchen and the ceiling.

10.  In or about April 2018, the 3^rd Plaintiff informed the 1^st Plaintiff that the water leakage had become more serious. Vast amount of waste water was trapped in the ceiling of the kitchen. The 1^st Plaintiff engaged Ideal Home Engineering Company (“Ideal Home”) to repair the fixtures in the kitchen and the dining area and the ceiling.

11.  The 1^st and 2^nd Plaintiffs spent a total amount of $140,800 for the repairing works.

The 3^rd Plaintiff’s Evidence

12.  By a tenancy agreement between the 1^st and 2^nd Plaintiffs and the 3^rd Plaintiff, the 3^rd Plaintiff resided with his wife in the Lower Unit since July 2009.

13.  It is the evidence of the 3^rd Plaintiff that there were water stains and water leakage in the ceiling of the dining area and kitchen in February 2018. The water leakage caused damages to the kitchen cabinets, ceiling, cooker, the exhaust hood and other appliances. It also affected their daily life.

14.  Repairing works had been conducted in the dining area and kitchen of the Lower Unit in March 2018. However, the water seeping became more serious in April 2018. The 1^st and 2^nd Plaintiffs engaged a contractor to conduct repairing works again and installed a temporary water container.

15.  The 3^rd Plaintiff stated that they suffered from the following discomfort and inconvenience. They claimed for the damages in the amount of $100,000:

(1)  It is the 3^rd Plaintiff’s evidence that since his wife had cancer and was easy to be infected, the family had moved to reside in a hotel from 14 to 16 March 2018 when repairing works were conducted. However, he could not produce the receipts of the hotel room. It was his testimony that the hotel did not provide a receipt to him because he booked the room online. He was only able to produce the receipt of beverages consumed in the hotel.

(2)  The 3^rd Plaintiff had to purchase extra detergents and deodorants to clean the affected area.

(3)  The family was not able to cook or eat in the Lower Unit and had to eat out or consume takeaway food most of the time.

(4)  Colour water test was conducted without notifying the 3^rd Plaintiff. The colour water seeped into the kitchen and stained the ceiling and the wall of the kitchen.

(5)  The water leakage continued until November 2018.

(6)  The water leakage caused electricity leakage and short circuit in the kitchen. The cooker could not be used and the kitchen cabinets had to be replaced. Since the water leakage occurred, it was also found that there were water stains and even water drippings around electrical switch in the dining area and the kitchen.

(7)  The 3^rd Plaintiff attempted to contact the Defendant for rectifying the situation but of no avail.

16.  The 3^rd Plaintiff also gave evidence as to the provenance of the photographs contained in the Expert Report.

The Expert Evidence

17.  Mr. Chiu inspected the Lower Unit on 17 July 2021 after the repairing work was completed. His observations of the damages to the Lower Unit was based on the photographs provided by the Plaintiffs.

18.  The photographs recorded and he found that:

Kitchen

(1)  The metal false ceiling strips were damaged;

(2)  There was dirt at the wall tiles. The tiles adhesion to the wall surface was affected;

(3)  Spalled concrete at the ceiling would be possible since the reinforcement bars at the concrete inside would be rusted;

(4)  The kitchen cabinets have been damaged;

(5)  The kitchen exhaust hood and gas cooker were damaged;

(6)  The light fittings and electrical cablings were damaged;

Dining Area

1)  Part of ceiling area near the kitchen was impaired;

2)  Wall surface near the kitchen was damaged.

19.  Mr. Chiu made reference to the repairing and replacing works of the damages abovementioned and estimated that the costs of the remedial works as $170,392.10.

Analysis of the Evidence

20.  I found that the 1^st Plaintiff was an honest and reliable witnesses, for instance, he gave unequivocal evidence as to his knowledge of the situation of the leakage and was forthcoming in admitting the matters that he was not clear. His evidence in clarifying the figures in the receipts of Ideal Home was firm and clear. I accepted his evidence.

21.  As to the evidence of the 3^rd Plaintiff, I found that his recollection of the duration of the leakage unsatisfactory. For instance, it was the 3^rd Plaintiff’s evidence in paragraph 18 of his witness statement that the water leakage ceased after the occupier in the Upper Unit moved out. However, he did not mention the exact month in the witness statement. On the other hand, he testified that the occupier moved out at about two to three months after the beginning of the first repairing work. In my calculation, that should be at the end of June 2018. Conversely, he testified that the water leakage ceased in about November 2018 without giving clear explanation. I have difficulties in accepting his evidence that the water leakage ceased in November 2018. Despite the above, his testimony on the leakage and the damaged areas in general and the provenance of the photographs contained in the Expert Report was detailed and unchallenged. The evidence of the 1^st and 3^rd Plaintiffs on the damaged areas was also consistent. I accepted the 3^rd Plaintiff’s evidence on the description of the water leakage and the provenance of the photographs.

22.  As to the Expert Evidence, it was not challenged nor rebutted. Despite that Mr. Chiu only inspected the Lower Unit after repairing works were completed, since I accepted that the photographs were authentic and were able to record the situation when the Lower Unit was affected by the water leakage in 2018, the basis of Mr. Chiu’s evidence on the damages and costs was well-founded. I have also considered the photographs and found that the photographs were able to support the damages mentioned above. The details of the damages were also substantiated by the evidence of the 1^st and 3^rd Plaintiffs. I therefore accepted the Expert Evidence in full.

23.  Given the above, I accepted the Plaintiffs’ evidence of the damages caused by the water leakage.

The Damages of the 1^st and 2^nd Plaintiffs: the Repairing Costs

24.  Damages for costs of repair and reinstatement is recoverable for physical damage caused to the property by nuisance. I was satisfied that the 1^st and 2^nd Plaintiffs are entitled to claim against the Defendant for the repairing costs.

25.  I have considered the estimated costs of repairs based on the Expert Evidence and the actual costs of work completed by the two contractors engaged by the 1^st and 2^nd Plaintiffs.

26.  The Counsel for the Plaintiffs provided a table in his opening submissions and compared the expert’s estimation with the actual costs incurred. It was submitted that (1) the total actual costs incurred were lower than the expert’s estimation; (2) when the costs were broken down into items, the actual figures were more or less the same as the expert’s estimation (if not lower) and (3) each items claimed and incurred by the 1^st and 2^nd Plaintiffs was considered necessary by the expert.

27.  In my view, I found it being impractical to adopt an item by item comparison of the expert’s estimation and the actual costs incurred since they adopted different approaches in categorizing and itemizing the repairing works.

28.  However, I agreed that the areas of damages and the scope of repair between the expert’s estimation and the areas where the actual costs incurred were basically the same. They were: preliminary works (including insurance and debris and rubbish disposal), replacement of damaged false ceiling at the kitchen, repairing the spalling concrete at kitchen ceiling, replacement of wall tiles at kitchen area, repainting wall and ceiling surfaces at dining area, replacement of kitchen cabinets, replacement of kitchen exhaust hood and gas cooker and re-wiring and replacement of light fittings.

29.  There were items not covered by the Expert’s Report such as the installation of temporary water container (actual costs of $6,000 under item B(c) by Ideal Home stated in the 1^st Plaintiff’s witness statement and evidenced by the quotation of Ideal Home), costs of identifying the area and extent of water leakage and confirming the source thereof (actual costs of $20,000 under item B(e) and part of $15,000 under item B(f)), demolishing and installing the washing basin and reinstalling the water supply (part of $12,000 under item B(g) and part of $40,000 under item B(h)). Given the damages that I found herein, I was satisfied that the above works were necessary or incidental to the repairing works identified by Mr. Chiu.

30.  The 1^st and 2^nd Plaintiffs provided the quotations and receipts of Kin Fu and Ideal Home. I found that there was a discrepancy of $2,000 in respect of the amount stated in the quotation of Ideal Home and the two receipts. Figures in one of the receipts was stated as $37,000 instead of $39,000. The 1^st Plaintiff had clarified and confirmed that $39,000 shown in the Chinese characters was the correct figure. I therefore accepted and assessed the costs of actual work spent by the 1^st and 2^nd Plaintiff as $140,800.

The Damages of the 3^rd Plaintiff: Special Damages and Damages for Discomfort and Inconvenience

31.  The 3^rd Plaintiff testified that the water leakage caused the special damages in a total amount of $4,000 i.e. $3,000 (the costs of the hotel room from 14 to 16 March 2018 in the amount of $1,000 x 3 days) plus $1,000 for costs spent on purchasing extra detergents and deodorants.

32.  The 3^rd Plaintiff could not produce the receipts for the special damages of $4,000. Despite that his testimony was not disputed, I was cautious that his claim for the special damages was not supported by any receipts. In the circumstances, I disallowed such item.

33.  The damages for inconvenience have been established as recoverable damages (John So and another v Lau Hon Man and others [1993] 2 HKC 356).

34.  In respect of the damages for Discomfort and Inconvenience, I have considered the following authorities provided by the 3^rd Plaintiff:

(1)  John So and another v Lau Hon Man and others was a water leakage case due to fresh water pipe burst. The court found that the escape of water was a nuisance and the respondents were in breach of their obligations in the Deed of Mutual Covenant. The court allowed $10,000 for water leakage of about 1.5 month;

(2)  In Chan Fei Lung (a male) v. Mansion Products Ltd (unreported, HCA 336/1990, 22 June 1990), the court awarded $25,000 as damages for nuisance for a period of two months;

(3)  In Leung Yung Chun v. Chan Wing Sang [2000] 1 HKLRD 456, the court awarded $80,000 for damages for inconvenience for water leakage lasting nearly 2 years;

(4)  In Wong Hon Hung and another v Jolly Birds Limited (unreported, DCCJ5341/2006) the court found that the Defendant was liable for nuisance caused to the Plaintiffs. The court summarized a number of cases and awarded $50,000 for damages of distress and inconvenience suffered by the Plaintiffs resulted from water leakage for over one year.

35.  In the present case, despite that it was the 3^rd Plaintiff’s evidence that the water leakage ceased in November 2018, I had doubts to his evidence on the exact duration of the water leakage and therefore adopted a cautious approach. I found that the water leakage started from February 2018 until in or about end of June 2018, which lasted about five months. I accepted that the water seeped from the Upper Unit was waste water. I was satisfied that the 3^rd Plaintiff suffered from the discomfort and inconvenience as stated in the preceding paragraphs. He was deprived of the use of the kitchen and the dining area and the environment therein was unacceptable. In the circumstances, I found that an award of $35,000 with the inflation over the years was justified, and I so allowed.

Conclusion

Damages

36.  Given the above, I assessed the 1^st and 2^nd Plaintiffs’ damages at $140,800.

37.  The 3^rd Plaintiff’s damages were assessed at $35,000.

Interest

38.  In respect of the repairing costs, the 1^st and 2^nd Plaintiffs sought interest of the awarded sum from the date of the Writ of Summons to the date of the judgment at 1% above HSBC’s best lending rate, and at judgment rate thereafter until payment. I was satisfied that it was a reasonable approach and ordered accordingly.

39.  As to the general damages for inconvenience, the 3^rd Plaintiff sought an interest of half judgment rate from the date of service of the Writ of Summons to the date of Judgment, and thereafter at judgment rate until payment. I was also satisfied that it was a reasonable approach and ordered accordingly.

Costs

40.  Costs should follow event. The Defendant should pay the costs of the Plaintiffs.

41.  I summarily assessed the costs and found that the amount stated in the statement of costs being excessive in areas such as attendance on clients under C1, attendance on counsel under C3 and preparation of documents under D1. Further, it was not a complicated water leakage case that the hourly rate of $3,860 was not justified.

42.  In the circumstances, I adopted a broad-brush approach and summarily assessed the costs and disbursement of this action at $145,000.

Order

43.  I enter final judgment in favour of 1^st and 2^nd Plaintiffs against the Defendant in the sum of $140,800 together with interests therein at 1% above HSBC best lending rate from the date of the Writ of Summons (i.e. 17 July 2018) to the date of the judgment and at judgment rate thereafter until payment.

44.  I enter final judgment in favour of 3^rd Plaintiff against the Defendant in the sum of $35,000 together with interests therein at half judgment rate from the date of service of the Writ of Summons (i.e. 18 July 2018) to the date of judgment, and at judgment rate thereafter until payment.

45.  The costs of the action summarily assessed at $145,000 be paid by the Defendant to the 1^st, 2^nd, and 3^rd Plaintiffs forthwith.