Read the full judgment text of HCA 495/2012 on BabelCite. This Court of First Instance judgment was delivered on 1 August 2019 before Hon Marlene Ng J.
Tort – nuisance – water leakage – private nuisance – duty and proof – causation – measure of damages – loss of amenity – landlord and tenant liability – unauthorised building works – contribution – third party proceedings. – P owned Flat GE on ground floor of Block E, Villa Dorada, extended in 2000 by enclosing open spaces into the Yard, Light Well, and Courtyard Structures (collectively "GE Structures") that were undisputedly unauthorised building works, enlarging the flat to 148 sq m. D1 owned Flat 1E directly above Flat GE. D2/TP1 and his family occupied Flat 1E from March 2007 under the 1st Tenancy, 2nd Tenancy and periodic tenancies with TP2 as tenant. P claimed that from November 2006 to March 2012 (except for the 06/11 Incident), there were on-and-off water leakages at three areas of Flat GE (Bathroom Area, Cabinet Area, Laundry Area) caused by defective drainage systems of Flat 1E, constituting nuisance and/or negligence. P commenced Main Proceedings against D1 and D2; D1 and D2 brought Contribution Proceedings; D1 brought Third Party Proceedings against TPs. – Held: The court determined that the burden is on P to prove on the balance of probabilities the source of water leakage comes from the flat above; there is no presumption that the source is the upper flat and res ipsa loquitur does not apply where there are multiple possible sources. For continuing nuisance, at least negligence must be proven, and the defendant is liable if with knowledge or presumed knowledge of the nuisance he fails to take reasonable means to bring it to an end (Sedleigh-Denfield v O'Callagan). The court found the Concession (P would not claim for repairs to the GE Structures, loss of enjoyment of the structures, or discomfort due to the structures' condition) significant for causation and quantum. On credibility, the court found P's evidence coloured by exaggeration and reconstruction, D1's evidence unreliable and disguised efforts to shift blame to TPs, and D2/TP1 a more reliable witness. Among experts, the court preferred Wu over Ho, finding Ho's professionalism and impartiality left much to be desired. – Whether the defendants were liable in nuisance – whether landlords and tenants are liable for nuisance – the measure of damages for physical damage and loss of amenity in nuisance – the assessment of damages by notional reduction in rental value or by global award – the requirement that claimant show actual loss of amenity with actual impact upon occupiers – the distinction between claimants who remain at afflicted premises (damages for personal loss of amenity equivalent to impaired amenity) and those who move out (recoverable loss is cost of alternative accommodation) – factual causation by 'but for' test and legal causation by causa causans – novus actus interveniens may break chain of causation – contractual indemnity under Collateral Agreement and Tenancy Agreements – the Concession regarding unauthorised building works affecting quantum.
Legal issues: Nuisance: duty and proof of water leakage from upper flat · Nuisance: causation of loss · Nuisance: measure of damages and loss of amenity · Nuisance: landlord's and tenant's liability · Contract: implied terms and right to indemnity
Outcome: The court delivered judgment on liability and quantum in the Main Proceedings, Contribution Proceedings, and Third Party Proceedings after a lengthy trial involving disputes over water leakages from Flat 1E into Flat GE. The judgment assessed credibility of factual witnesses (finding P's evidence coloured by exaggeration, D1's evidence unreliable, and D2/TP1 more reliable), preferred Wu's expert evidence over Ho's, and addressed the Concession by P regarding the GE Structures' status as unauthorised building works.
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