Elias Neil David and Another v. Cheng Sui Chu and Others
Read the full judgment text of DCCJ 2148/2016 on BabelCite. This District Court judgment was delivered on 19 December 2018.
1. This is a dispute between neighbours involving allegations of nuisance, trespass and conversion. [1]
Cited by 1 case · Cites 9 cases
|
DCCJ 2148/2016 [2018] HKDC 1567 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2148 OF 2016 --------------------------
--------------------------
--------------------- JUDGMENT ---------------------- A. Background 1.This is a dispute between neighbours involving allegations of nuisance, trespass and conversion.[1] 2.The 2nd defendant (“D2”) is one of the owners of a piece of land in Tai Yeung Che, Tai Po, known as Lot No 246 in DD 8 (“the defendants’ land”). The 1st defendant (“D1”) is his wife. At all material times, D1 acted on behalf of D2 in relation to the defendants’ land.[2] 3.The defendants’ land is adjacent to four village houses as shown in the agreed sketch at Appendix A. The defendants’ land is delineated by markers A-B-O-P and the houses are numbered Houses 60 to 63 respectively on the sketch. 4.The plaintiffs (“P1” and “P2” respectively) were the owners and occupiers of House 61 at Section B of Lot No 245 in DD 8. 5.By a tenancy agreement dated 27 May 2010 (“Head Lease”), the defendants let a portion of the defendants’ land to the then owner of House 60, Susan Fitzgerald (“Susan”). The portion that was let to Susan abutted House 60 and House 61. 6.The Head Lease contained the following express terms:
7.It is clear from the above and not disputed by the defendants at the trial that the Head Lease was for a term of 10 years commencing on 1 January 2011 at the monthly rent of $2,500. After 1 January 2016, either party could terminate the lease by giving one month’s written notice. 8.At the commencement of the Head Lease, the portion of land let to Susan was uncultivated and overgrown with vegetation. Susan cleared the vegetation and turned it into a garden. She erected wooden fences at the perimeter of the garden at her own expense (“Susan’s fences”). Susan’s fences are marked by felt-pen marker on Appendix A. B. The plaintiffs’ case 9.By an undated sub-lease, Susan sub-let part of her garden to the plaintiffs from 31 May 2012 for the remainder of the term of the Head Lease at the monthly rent of $1,250 (“Sub-Lease”). The part that was sub-let to the plaintiffs abutted House 61 (“subject land”). 10.The plaintiffs erected a wooden fence to separate his garden from Susan’s. The fence erected by the plaintiffs (“plaintiffs’ fence”) is also marked by felt-tip marker on Appendix A. 11.On 1January 2016, D2 and his nephew suddenly came to the subject land to erect a barbed wire fence along the boundary with House 61 to block access from the house. They were turned away by the plaintiffs who asserted their right to use the subject land under the Sub-Lease. 12.Sometime between 1 and 15 January 2016, the defendants broke through Susan’s fences to scatter “hell money” (溪錢) and spread wooden planks, palm leaves, polystyrene boxes, urns and bananas on the subject land. The situation was captured by the photographs exhibited at pp 163-165 of the Bundle. 13.By a letter dated 19 January 2016, the plaintiffs complained to the defendants and demanded them to remove the “rubbish”. The plaintiffs reiterated their right to use the subject land under the Sub-Lease and reminded the defendants of clause 23 of the Head Lease. 14.There was no response from the defendants and the plaintiffs removed the “rubbish” on 23 January 2016. D1 then made a complaint to the police. 15.By a letter addressed to Susan dated 25 January 2016 (“Notice”), the defendants threatened legal proceedings if vacant possession of the defendants’ land was not delivered to them by 25 February 2016. 16.The plaintiffs acknowledged receipt of the Notice and, by a separate letter, offered to buy the subject land at $300,000. 17.By a letter dated 5 February 2016, the defendants rejected the offer and insisted that “[u]nless vacant possession of the captioned land is delivered before 25th February 2016, legal proceedings will be instituted against [Susan] and you…”. 18.By a letter dated 16 February 2016, the plaintiffs confirmed that they would handover the subject land by the deadline. They further wrote that:
19.There was no response from the defendants and the plaintiffs removed the remaining fences. The plaintiffs only received the letter dated 19 February 2016 from the defendants’ solicitors after they had removed the fences. 20.The plaintiffs delivered vacant possession of the subject land to the defendants on 25 February 2016. 21.After they had resumed possession of the land, the defendants committed the following acts:
22.The plaintiffs made repeated complaints to the village head, the police and to the Government but to no avail. The village head advised the plaintiffs to call the police. The police responded that as the acts were done on private properties, they could not take any action. Staff of the Food, Environmental and Hygiene Department (“FEHD”) only came to lay down rat poison in the surrounding government land and pinned warning notices to that effect in the vicinity. 23.On 21 April 2016, D1 came to mix and spread “chemicals” on the subject land which gave off a sharp and noxious smell. The plaintiffs called the police who, in turn, summoned the fire brigade. Firemen came to investigate and located three buckets of excreta with pungent smell on the land.[3] 24.It is the plaintiffs’ case that the defendants’ acts constituted nuisance.[4] They commenced this action on 6 May 2016 and obtained an ex parte interlocutory injunction against the defendants. 25.On the return date of the ex parte injunction on 20 May 2016, the defendants undertook to the court (i) to remove all the dead fishes; (ii) not to deposit any substance that would emit obnoxious smell or cause nuisance on the subject land; and (iii) not to use mirrors or like substance to reflect light into House 61, and the plaintiffs did not proceed with their injunction application. 26.The plaintiffs later sold House 61 and the defendants were discharged from their undertakings. 27.At the trial, the plaintiffs sought the following relief:
C. The defendants’ case 28.The defendants challenge the validity of the Sub-Lease and deny that the plaintiffs had the right to use the subject land. 29.The defendants claim that the plaintiffs should be liable for wrongfully removing the fences[5] before handing possession of the subject land back to them. It is their case that the fences belonged to them. 30.The defendants admit the several acts alleged of them by the plaintiffs but deny dumping any “rubbish”. They explain that:
31.They deny using any “chemicals” on the subject land. After they had resumed possession of the land, they placed lidded containers of “organic fertilizer” on the land. They deny that the containers gave off any nauseating smell. On 21 April 2016, D1 came to the land to dilute the fertilizer with water and to apply it to the land to make preparation for farming. The defendants had stopped applying fertilizer to the land since 26 April 2016. 32.They deny any nuisance and contend that their actions constituted reasonable use of their land. 33.At the trial, they counterclaim for: [6]
D. The trial 34.The broad issues that require determination are:
35.Both plaintiffs testified at the trial. They called Susan and Dawn Chen (“Dawn”), an occupant of House 61 at the time, to give evidence. 36.Both defendants testified. They called D1’s nephew (黃竣瑋) and the current owner of House 60 (謝寶珠) to testify. 37.There is no dispute over the documentary evidence. E. Should the plaintiffs be liable in trespass? 38.It is the plaintiffs’ case that they were entitled to use the subject land (hence, no trespass) under the Sub-Lease. 39.The defendants sought to challenge the validity of the Sub-Lease by two arguments:
40.In his closing submissions, Mr Pang raised a third alternative. He argued that D1 had, with Susan’s consent, served a written notice of termination through WhatsApp in March 2015 and the Head Lease had been determined on 31 January 2016. [9] Consequently, the plaintiffs had been in wrongful occupation since 1 February 2016. (“the third alternative”) 41.The third alternative, discerned by Mr Pang from the evidence, was never pleaded. In Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at §21, theChief Justice issued this warning:
42.Furthermore, the third alternative was not put to Susan during cross-examination. In the premises, the defendants may not raise a new case in closing submissions. 43.The first alternative is premised on the forfeiture of the Head Lease when Susan sublet the subject land to the plaintiffs on 31 May 2012. 44.However, it is clear from the evidence that the defendants had accepted rent from Susan after 31 May 2012. As stated in para 17.098 of Woodfall on Landlord and Tenant:
In the premises, the defendants are taken to have waived their right to invoke clause 20 of the Head Lease to forfeit Susan’s lease by reason of the subletting. 45.In any event, I accept Susan’s evidence that D1 had been informed of the subletting and that the defendants had raised no objection to it (see paragraph 5 of Susan’s witness statement). Susan’s evidence is corroborated by the WhatsApp messages in evidence. 46.On 17 March 2015, after D1 had intimated (erroneously, see below) that the Head Lease would expire at the end of 2015, she wrote that:
If the defendants did not know about or consent to the subletting, D1 would not have reminded Susan to inform the plaintiffs. 47.I therefore rule against the defendants on their first alternative. 48.The second alternative should also be rejected. According to D1, she ran into Susan in early March 2015 when Susan requested termination of the Head Lease by April 2015. After some negotiation, she agreed with Susan that the lease would end on 31 December 2015 and Susan specifically waived the requirement for written notice of termination under the Head Lease. 49.The defendants’ case is inconsistent with the contemporaneous evidence. On 16 March 2015, there were these WhatsApp exchanges between D1 and Susan:
50.It is clear from the above that:
51.D1 suggested in her evidence that the payment of 8 months’ rent (up to the end of 2015) in one go by Susan is evidence of the alleged agreement. I do not agree. Susan’s action was prompted by D1’s message dated 17 March 2015 (quoted above). Reading that message in the context of the exchanges on the previous day, it is clear that D1 was then under the aforesaid misapprehension. Susan’s action was not referable to any agreement to terminate the Head Lease early. 52.Furthermore, in the Notice dated 25 January 2016 by which the defendants demanded the plaintiffs to vacate the subject land, D1 wrote: “… the Premises was let to [Susan] for a term of five years expiring on 31st December 2015. I am further instructed that notwithstanding the tenancy of the Premises has already been expired on 31st December 2015, you have [failed] and/or [refused] to deliver vacant possession of the Premises…”. There was no mentioning of any agreement to terminate the Head Lease early. 53.The defendants have failed to destroy the validity of the Sub-Lease based on which the plaintiffs had possessed the subject land. 54.The Head Lease was only terminated by means of the Notice and the plaintiffs duly delivered vacant possession of the subject land to the defendants by the deadline imposed by the defendants. There was no trespass. 55.The defendants’ counterclaim based on trespass is therefore dismissed. F. Should the plaintiffs be liable for removing the fences? 56.There is no dispute that the fences were paid for by Susan and the plaintiffs respectively. The fact that the fences were installed with the defendants’ permission (see para 16 of the D&CC) did not confer ownership on the defendants. 57.The defendants nonetheless argue that the fences belonged to them by the following arguments:
58.Argument (a) is premised on a personal contract made between Susan and the defendants. I agree with Mr Yip that since the plaintiffs were not privy to that contract, the defendants have no cause of action against the plaintiffs on it. 59.In any event, I find against the defendants on the existence of such a contract. According to D1, the alleged contract was part and parcel of her arrangement with Susan on the early termination of the Head Lease at Susan’s request (see paras 11-18 & 41-43 of D1’s witness statement). As I have rejected the defendants’ primary case that Susan had requested early termination, I refuse to accept their case on the existence of an agreement in relation to the fences. This is all the more so as their allegation is:
60.In relation to argument (b), the relevant law is as stated in paras 13.140-13.141 of Woodfall on Landlord and Tenant:
61.In my view, the fences installed by Susan and the plaintiffs at their own expenses are “tenant’s fixtures”. The fences were annexed to the land by Susan or with her permission to delineate the boundary and to enhance the aesthetic appearance of the gardens. The plaintiffs had removed the fences without causing damage to the land as there was no corresponding complaint from the defendants. 62.In his closing submissions, Mr Pang argued that clause 15 of the Head Lease had the effect of excluding Susan’s right to remove tenant’s fixtures. I do not agree. 63.Whether the tenant’s right to remove tenant’s fixtures has been excluded depends on the construction of the particular covenant in question. If a landlord wishes to do so, he must say so in plain language. If the language used leaves matters doubtful, the ordinary right of the tenant to remove tenant’s fixtures will not be affected. See Woodfall on Landlord and Tenant, para 13.153. 64.In the present case, clause 15 provided that:
65.In my view, there was nothing to exclude Susan’s right to remove tenant’s fixtures. To the contrary, the requirement that Susan should yield up all fittings and fixtures including “the fixtures hereto” (meaning the fixtures that existed at the commencement of the lease) and “other Landlord’s fixtures subsequently added” (without mentioning any tenant’s fixtures) suggests that the tenant’s right to remove tenant’s fixtures is preserved. 66.Thus, the defendants have not established any right over the fences. 67.A person has title to sue for conversion if and only if he had, at the time of the conversion, either actual possession or the immediate right to possess the property concerned: see para 17-43 of Clerk & Lindsell on Torts. 68.When the plaintiffs removed the fences, the defendants did not have actual possession of the fences. By the foregoing analysis, the defendants did not have any immediate right to possess the fences either. In the premises, they have no right to claim for reinstatement of the fences and their counterclaim is dismissed. G. Should the defendants be liable in nuisance? 69.Mr Pang took a pleading point in his closing submissions. He submitted that the plaintiffs should not be entitled to base their claim on any acts done by the defendants prior to March 2016, as the plaintiffs have only pleaded acts of nuisance “[f]rom early March” in paragraph 9 of the ASOC.[12] 70.In reply, Mr Yip specifically conceded the complaint in relation to the installation of the barbed wire fence which happened on 29 February 2016. 71.In my view, given the concession the plaintiffs should also have foregone their complaints in relation to the defendants’ acts in ploughing up the land, demolishing the plants and posting up signs and notices as they were done on 29 February 2016 (see paragraph 16 of P1’s witness statement). 72.Be that as it may, the following complaints remain:
73.Mr Yip argued the defendants’ liability in nuisance on two different bases:
74.Mr Yip’s submission in (i) prompted an interesting argument during closing submissions and I invited both counsel to submit fully by means of supplemental submissions. I am grateful for their further thoughts. G1. Acts done with an intention to annoy 75.In his final analysis, Mr Yip categorised the defendants’ acts of (i) dumping rubbish, (ii) hanging up signs and notices and (iii) ploughing up the land as “sight’ nuisance. He submitted that: “in the case of sight (as contrary to other categories of nuisance, such as noise, smell, etc), it is only when the acts were done with an intention to annoy and causing serious interference with the plaintiff’s enjoyment of the land, then such acts would constitute actionable nuisance.” (with Mr Yip’s emphasis). 76.He argued that an intention to annoy the plaintiffs should be apparent from the following considerations:
77.On the other hand, Mr Pang submitted that:
78.I do not think I need to be drawn into their argument. According to Mr Pang, the defendants’ intention is simply irrelevant. On the other hand, according to Mr Yip’s formulation, the plaintiffs will still have to prove that (i), (ii) and (iii) had caused serious interference to the plaintiffs. I do not think the plaintiffs have succeeded in proving that. 79.In terms of (i), it is P1’s evidence that D1 dumped “rubbish” of old pots and broken wood on the subject land on 2 March 2016 and then added more “rubbish” between 14 and 25 March 2016. The state of the land as at 25 March 2016 (ie after the acts complained of) was captured by the photographs at pp 183-185 of the Bundle. When one compares these photographs with the photographs at pp 176-177 of the Bundle taken on 29 February 2016 (ie before the acts complained of), one does not see much difference in terms of the state of the land. It is not the plaintiffs’ case that the “rubbish” was smelly. 80.In terms of (ii), the defendants were merely asserting their ownership over their land by putting up signs and notices to warn against trespassers. It cannot be said that the plaintiffs’ occupation and enjoyment of their house was thereby affected. 81.There is a background to the defendants’ action. There is in evidence some advertisements published in November 2015 for the sale of what appeared to be the plaintiffs’ house.[13] Whilst the plaintiffs denied placing the advertisements themselves, they confirmed that they had engaged a property agent to sell their house at that time and the advertisements did feature their house. The advertisements highlighted a 2,000 odd square feet garden. Faced with such advertisements, it would be reasonable for the defendants to take reasonable action to protect their interest, such as by putting up signs and notices on their own land to assert their ownership. It cannot be said that the plaintiffs’ use and occupation of their house was thereby affected. 82.In terms of (iii), the defendants were entitled to till their land after resuming possession of it. It was certainly heart-wrenching for the plaintiffs to see their garden destroyed, but the defendants’ act did not, in my view, create any real interference to the plaintiffs in terms of their occupation and enjoyment of House 61 let alone substantial interference. 83.I therefore rule against the plaintiffs on their claim based on an intention to annoy. 84.In the ensuing paragraphs, I shall consider the alternative basis of liability argued by the plaintiffs, ie nuisance. G2. What is nuisance? 85.Both counsel have cited Clerk & Lindsell on Torts on the general law. The relevant principles may be summarized as follows:[14]
G3. The mirror door 86.Mr Yip cited the New Zealand case of Bank of New Zealand v Duncan Cotterill & Co[15] in argument. In that case, the glass roofing panels installed by the defendants on their verandah reflected sunlight into the windows of the two buildings across the road occupied by the plaintiffs. The plaintiffs (including a bank and a firm of solicitors) sued the defendants in nuisance. The High Court of New Zealand accepted the general evidence (at p 3 of the judgment) that: “… on a sunny day the verandah throws off a dazzling glare that is too intense for the naked eye to bear; and those subjected to it cannot reasonably be expected to tolerate. People are momentarily blinded by it, have to shield their eyes from it, cannot look out the windows at it, need to sit with their backs to it. Sometimes they get headaches. It is a continuing cause of irritation and complaint, not only to those working there but also to the plaintiffs’ customers and clients.” 87.The Court rejected the defence that the defendants were doing no more than making ordinary and reasonable use of their land and found (at p 16) that: “It is not a normal or a reasonable consequence of the construction of a verandah for a dazzling glare to be reflected into premises opposite, and so create a nuisance there.” 88.The Court considered the circumstances of each plaintiff separately as (at p 4) “various plaintiffs are affected to different degrees; and also in different ways, according to the interior layout of the premises.” The Court held that the plaintiff bank had made out their case on nuisance as there was a substantial and unacceptable interference with the enjoyment of their premises (at pp 13-14 & 18). 89.In respect of the plaintiff solicitors, however, the Court found (at pp 4-5) that “the glare is apparent only in and on entry into the rooms with windows looking out onto Hereford Street … [and their] windows are, with one exception, fitted with venetian blinds, but these need to be closed completely to keep the glare out, for it appears to be much more penetrating than sunlight.” The Court reasoned (at p 14) that: “Whilst it may be awkward, I do not think it unreasonable for persons in offices fitted with venetian blinds to have to close these when necessary to keep out the glare, or even to keep them closed while the likelihood of glare persists. It is a perfectly normal thing for people to have to do. It is part of what venetian blinds are designed for… No doubt when the blinds are closed completely the rooms are darkened, but the interior lights are on all day, and I do not see that as a serious imposition in all the circumstances. I was told that even when the blinds are closed completely the glare may penetrate at the edges, but that seems to me a relatively minor matter. I exclude from consideration the one room in which there are no blinds, for that is the result of deliberate choice. I accordingly agree with Mr Sissons [for the defendants] in relation to [the plaintiff solicitors] and hold that it has not established the basic premise on which its action depends.” 90.In the present case, the defendants admitted that D1 had (with the help of others) placed a mirror door on the land. I find their excuse of using its reflective surface to “scare off or prevent birds from damaging the crops growing or to be grown” incredible. D1 brought in the mirror door in early March 2016. At that time, she had just churned up the soil to enable the insecticide once placed by Susan to be drained and washed away. She had not yet sown and there was no cause for her to worry that the birds might destroy her crops. 91.On the other hand, I accept the plaintiffs’ evidence (which is confirmed by the photograph at p 178 of the Bundle) that D1 had positioned the mirror door to reflect sunlight into the plaintiffs’ house. Be that as it may, it is not clear how the plaintiffs (or any occupants of their house) were affected. 92.The side of the plaintiffs’ house being affected overlooked an open field. It was not as if sunlight was diverted by the mirror door to shine upon a part of their house that would normally be shaded from the sun and the inhabitants were thereby affected. According to P1, sunlight was reflected by the mirror door into their house for a couple of hours in most afternoons between March and May 2016 and the study room was particularly affected. During that period, P1 had a busy overseas travel itinerary and P2 was mostly engaged in her teaching duties at the university. And their house was fitted with curtains and the plaintiffs did use the curtain to block out the sunlight if necessary. There is no clear evidence as to how they were affected. 93.The plaintiffs have not satisfied me that the mirror door placed by the defendants had caused real (let alone sufficiently serious) interference with their occupation and enjoyment of House 61. G4. The dead fishes 94.According to the plaintiffs, D1 came to the land on 5 March 2016 and hanged 5 to 6 dead fishes on the fence abutting House 61. The dead fishes created an unpleasant sight for the plaintiffs. D1 also placed some more dead fishes on the land and covered them with palm leaves. Obnoxious and unpleasant smell emanated from the dead fishes spread through the neighbourhood and their house. 95.As the dead fishes began to rot, the smell got stronger and stronger. The obnoxious smell caused both P1 and P2 to feel nauseous. They suffered irritation of their eyes, nose and throat and loss of appetite. They had to keep their windows and French doors shut at all times and could not turn on their air-conditioner to mitigate the smell, but the unpleasant smell still permeated the house. The smell also prevented their domestic helper from staying in his quarter. By April 2016, parts of the rotten fishes had dropped to the ground attracting various insects and vermin to the vicinity of their house. 96.They made repeated complaints to the police and the Government but to no avail. 97.The defendants admit hanging dead fishes on the fence and burying some in the ground.[16] They however, dispute:
98.There were “5-6 fishes” according to the plaintiffs’ evidence in court, but the defendants claim to have hung “no more than 3 fishes at a time”. Both claims are approximation. I do not consider the dispute over the number of fishes material. The plaintiffs are suing the defendants in nuisance and, as far as that goes, the focus is on the degree of interference caused by the dead fishes (hanged and buried). Whether there were in fact 5 to 6 dead fishes or no more than 3 dead fishes being hanged at a time on the fence is, in my view, immaterial. 99.I reject the defendants’ case that D1 was making salted fish on the balance of probability. There is a ring of artificiality in D1’s testimony:
100.On the contrary, I find that D1 hanged the dead fishes to annoy the plaintiffs.
101.I also reject the defendants’ case that the dead fishes did not give off obnoxious smell. D1’s denial (of smell) must be viewed against her evidence that she visited the defendants’ land infrequently. The fact that the new owner of House 60 did not perceive any obnoxious smell from the dead fishes (see paragraph 11.3 of her witness statement at p 149 of the Bundle) is also neither here nor there, as she only attended her house over the weekends. 102.On the other hand, the plaintiffs’ complaint is corroborated by the WhatsApp exchanges between P2 and the village head (Mr Wong):
103.It is the plaintiffs’ evidence that the smell from the dead fishes had died down by early April 2016. However, Dawn, an occupier of their house, claimed that the dead fishes were still producing bad and obnoxious smell in mid-April. In my view, their evidence do not necessarily contradict each other as their perception of the interference may be different. In any event, the Environmental Protection Department (“EPD”) conducted inspection on 6, 13, 19 and 26 April and 10 May 2016 and confirmed that there was “no air nuisance” (see EPD’s letter dated 16 June 2016 at p 464 of the Bundle). I accept the plaintiffs’ evidence that the smell had died down by early April 2016. 104.All in all, I find that the dead fishes admittedly hung by the defendants did produce an unpleasant sight and give off an obnoxious smell that substantially interfered with the plaintiffs’ enjoyment of House 61 for about a month (from 5 March to early April 2016). G5. “Chemicals”? 105.It is the plaintiffs’ case that the defendants left large urns of “unknown chemical” on the subject land. On 21 April 2016, the defendants mixed the chemicals in the urns which produced an obnoxious smell. 106.The defendants deny using any chemicals on the land. They however admit placing “lidded containers” of “fertilizer” on the subject land (see para 33.6 of the D&CC) and “diluting the fertilizer with water” on the land on 21 April 2016 (see para 48 of the D&CC). 107.According to P2, the defendants’ action on 21 April 2016 caused her eyes to water and throat to constrict. Dawn also picked up a sharp and noxious smell when she returned to the house that evening and she had difficulty breathing. 108.I accept the plaintiffs’ case that the substance brought onto the subject land by the defendants did give off an obnoxious smell:
109.In his closing submissions, Mr Pang suggested that “the lids were opened by the firemen or someone other than Ds.” The submission is not consistent with the defendants’ admission that “the 1st Defendant was … diluting the fertilizer with water” on the land on that day. There is no evidence that someone else had mingling with the substance. As said before, the fire brigade came to investigate “suspected leakage of chemical substance”. That suggests the presence of a pungent smell before the fire brigade arrived. 110.I therefore accept that the defendants had placed three buckets of substance at the back of the plaintiffs’ house and applied the substance to the land. The substance gave off an obnoxious smell that caused irritation to P2 and Dawn. 111.According to the EPD letter, there was “no air nuisance” on 26 April and 10 May 2016 when they conducted inspection. As such, the period of interference was at most a few days. G6. Conclusion 112.All in all, I accept that the defendants had committed the following acts of nuisance:
H. Measure of damages 113.It is not the plaintiffs’ case that they have suffered any tangible loss. They claim:
114.In cases involving interference with amenity and enjoyment of property, the court must place a value on the intangible loss. The approach was explained by Lord Hoffmann in Hunter v Canary Wharf Ltd [1997] AC 655 at 706B-F as follows:
115.The above principles have been applied in Hong Kong.[18] Our Court of Appeal has added that there is no scientific way of translating inconvenience and discomfort into a sum of money and so the measure of damages has to be a conventional sum.[19] It is ultimately a question of evidence.[20] 116.Mr Yip cited two authorities in argument:
He submitted that the defendants had committed a wide range of actionable nuisance over a period of 3 months between February to May 2016 and the appropriate quantum lay closer to Hu Wei Hsin. 117.Mr Pang did not submit on the question of quantum. 118.In my view, the plaintiff’s reliance on Hu Wei Hsin is misplaced. The award in Hu Wei Hsin is premised on the special circumstances of that case. In that case, the learned Judge explained (at para 53) that:
119.In the present case, the unsightly dead fishes and the pungent smell from the dead fishes and the excreta had substantially interfered with the plaintiffs’ use and enjoyment of their house. The plaintiffs had been affected for about one odd month in total. I accept that the smell was particularly intense and irritating as confirmed by the evidence. I award the plaintiffs $40,000 as damages in the circumstances of this case. 120.The plaintiffs also claim aggravated damages. Such a head of damages was not expressly claimed in the ASOC and Mr Yip only raised it for the first time in his closing submissions. 121.In the UK, rule 16.4 of the Civil Procedure Rules stipulates that if a claimant is seeking aggravated damages, he must include a statement to that effect as well as his grounds for claiming them in the Particulars of Claim. However, there is no such requirement in our Rules of the District Court. That has prompted Mr Yip to submit, in response to my query, that the plaintiffs need not plead such a claim. I do not quite agree. 122.According to para 18/12/10 of Hong Kong Civil Procedure 2018, the practice is that:
So, although there is no specific requirement to plead a claim for aggravated damages the facts relied in support of such a claim must still be pleaded. 123.In Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299, Ribeiro PJ explained the basis of an award for aggravated damages (in the context of a defamation action) as follows:
124.In the present case, despite the pleading in paragraph 17 of the ASOC that “[t]he continued effects have caused and cause the Plaintiffs stress and distress, anxiety and worry”, no evidence was led in that regard at the trial. Thus, there is no evidence (and there is no basis for presuming) that the plaintiffs have suffered any additional injury to their feelings as a result of the defendants’ acts of nuisance. There is no evidential basis to make an award for aggravated damages. I. Disposition 125.By reason of the above, I find the defendants liable to the plaintiffs in nuisance. I order the defendants to pay the plaintiffs damages in the sum of $40,000. 126.The plaintiffs have prayed for interest in their ASOC but the point was not argued by either counsel. In McGregor on Damages, it is said that apart from the case of Dobson v Thames Water Utilities Ltd [2012] EWHC 986 (TCC) the courts have not awarded interest on the non-pecuniary loss element in torts generally outside the field of personal injury and wrongful death, and the better solution is to award no interest at all.[21] I direct that if the plaintiffs would like to seek pre-judgment interest on the $40,000 awarded to them, they should lodge in and serve written submissions within 14 days from the date of this judgment, setting out the basis of claim, the interest rate claimed and the period for which interest should accrue. The defendants are at liberty to lodge in and serve their written submissions in reply within 14 days thereafter. Unless otherwise directed, the issue will be determined on paper without an oral hearing. If I do not hear from the plaintiffs, they will be taken to have waived their claim on pre-judgment interest. 127.The counterclaim is dismissed. 128.Costs normally follow the event. I make an order nisi that the costs of this action (including the costs of the counterclaim and all reserved costs) be to the plaintiffs with certificate for counsel, to be taxed if not agreed.
Mr Richard Yip instructed by Cheung & Liu for the 1st and 2nd Plaintiffs Mr Jane Sae Pang instructed by Mike So, Joseph Lau & Co for the 1st and 2nd Defendants The 3rd Defendant in person did not attend the hearing Appendix A Agreed Sketch
[1]The plaintiffs have elected not to proceed against the 3rd defendant who has not entered an appearance in this action. [2] Para 6.1 of the Defence and Counterclaim (“D&CC”). [3]See the Incident Report at pp 465-466 of the Bundle. [4]Their counsel (Mr Yip) has confirmed that the plaintiffs are not invoking the rule of Ryland v Fletcher for their claim, and that they are not pursuing their claim based on negligence (see para 19 of the Amended Statement of Claim, “ASOC”) either. [5]The claim for the value of the plants and trees allegedly destroyed by the plaintiffs (see paras 25.1 & 52.3 of the D&CC) was not pursued. [6] The claim for economic loss (see para 53.3 of the D&CC) was not pursued. [7] Paras 9-13 of the D&CC. [8] Paras 14-15 of the D&CC. [9] See para 66 of his closing submissions. [10] Paras 17-18 of the D&CC. [11] Para 18 of the D&CC. [12]Be that as it may, Mr Pang agreed that such acts may still be considered as part of the background of the case (see para 28 of his closing submissions). [13] At pp 447-449 of the Bundle. [14] Clerk & Lindsell on Torts, 22nd Edition (2018), at paras 20-01 & 20-10. [15] Unreported judgment of the High Court of New Zealand dated 14 December 1983 (No A 277/80). [16] See para 26 of Mr Pang’s closing submissions. [17] It is not clear from the evidence what was attached to the message. [18] See Ng Hoi Sze v Yuen Sha Sha [1999] 3 HKLRD 890 at 895A-C & 895I-896C and Sun Crown Trading Limited v Holyrood Limited (unreported) CACV 64/2012, 11 October 2013 at para 74-76. [19]See So John v Lau Hon Man [1993] 2 HKC 356 at 359G. [20] See Ng Hoi Sze v Yuen Sha Sha [1999] 3 HKLRD 890 at 895A-C & 895I-896C. [21]See McGregor on Damages, 20th Edition (2018), paras 19-049 and 19-134. | |||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under DCCJ 2148/2016