Lai Mei Ling v. Wong Yee Ming Anthony and Another

DCCJ 854/2019

[2022] HKDC 582

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 854 OF 2019

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JUDGMENT

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1.This is an assessment of quantum hearing for a nuisance claim. The 1^st and 2^nd defendants (“the defendants”) acting in person and did not attend the hearing.

Background

2.The plaintiff was and is living with her family in Flat G, 2^nd Floor, Block 10 (“Flat 2G”), Villa Concerto Symphony Bay, 530, Sai Sha Road, New Territories, Hong Kong (“the Estate”).

3.The defendants had been the owners and occupiers of Flat G, 3^rd Floor, Block 10 of the Estate (“Flat 3G”), that is, the flat directly above the plaintiff’s flat.

4.The gist of the claim was that the defendants had been creating disturbing noises all through the day and night (from around 7 a.m. to after 1 a.m.) which the plaintiff first noticed around September 2017.

5.The defendants have sold Flat 3G and had moved out around April 2021.

6.This court has made an “unless” order dated 5 May 2022 for the defendants to pay into court a sum of HK$50,000 under Order 2 Rule 3 of the Rules of District Court as security for the plaintiff’s costs within 14 days.

7.This has not been complied with and, as such, the defendants’ defence was struck out with judgement entered on 19 May 2022.

8.Mr. Lee, solicitors for the plaintiff, confirmed at the hearing that the plaintiff no longer sought any injunctive relief against the defendants. The only issue before the court was the award for general damages.

General Damages

9.The plaintiff’s evidence was that there were loud and disturbing noises originating from Flat 3G from activities like jumping, running, playing with a scooter, moving furniture, banging on the floor etc. since around September 2017 to around April 2021 (that is, for a span of some 3.5 years).

10.On a typical day, such noises started around 7 a.m. which always woke the plaintiff up. There would be a lot of activities by the child of Flat 3G like running, jumping and playing with a dog until the child left the flat around 11 a.m. for about an hour. Then the noise returned around 12 noon to 1 p.m. and then lasted until around 3 to 4 p.m.. Then starting from around 6 p.m., there would be noises from moving furniture etc. until around 9:30 p.m.. Then, there would be a period of relative quiet until around 11:30 p.m. when there were activities like moving heavy objects etc. until around 1:40 a.m..

11.The plaintiff claimed that these disturbances have affected her sleep and created stress: she felt her heart rate rising and she got nervous when the noise occurred. She had also developed some facial rash which she blamed on the stress. During the day, she would rather be out of the flat to be driving her around in her car or walking on the podium.

12.According to the plaintiff, she had made numerous complaints to the management office (there were more than 1,500 records of such complaints in the Hearing Bundle) which has also gave numerous warnings to the defendants, all to no avail. The plaintiff claimed that the defendants simply said that this was their lifestyle and they would not change it.

13.The plaintiff is seeking HK$100,000 under this head of claim.

14.There are few authorities on damages for nuisance arising out of noise. Mr. Lee referred the court to Ng Yuen Han v Lam Fei Fui and other [2013] 3 HKLD 608 which concerned with disturbing noise (“walking, cutting vegetables, dropping chopsticks and getting out of bed at night”) and water seepage for a period of around 3-4 years. The award was HK$60,000.

15.Godfrey JA, in the case of Lo Yu Chu v Kam Fu Lai Development Co. Ltd [1994] 3 HKC 18, has given valuable guideline on the principles of compensation on nuisance arising out of noise in that the damages for discomfort, inconvenience and annoyance caused by nuisance “ought to be assessed on the analogy of damages for loss of amenity in personal injury cases”.

16.So Kwok Yan Bernard v Lau Wing Chung [2015] HKCU 599 also concerned nuisance arising out of noise of daily activities for some for some 2 years and 4 months. That trial was on the issue of liability with damages already agreed by the parties at HK$50,000. As such, although the quantum was not decided by the court, this perhaps suggested a ballpark figure for what the parties might contemplate in such cases.

17.Mr. Lee suggested that the award in the current case should be above the case of Ng because some noises were caused by activities beyond what should be considered “daily” activities, e.g. riding a scooter or playing ice hockey inside the flat etc. He also suggested that some noises were intentional and that the nature and pattern of the noise in the current case were more unpredictable, irregular and sudden.

18.However, whilst I agree with Mr. Lee regarding the nature of the disturbance in the current case, I note that the award in the Ng case also covered nuisance arising out of water seepage.

19.As such, having all the factors and principles, I am of the view that the overall degree of nuisance in both cases should be broadly similar so the appropriate award in this case should be HK$60,000.

Order

20.I would therefore order the 1^st and 2^nd defendants to pay the plaintiff the sum of HK$60,000 as damages.

21.As for costs, the general rule is that costs should follow the event so I would award the costs of the assessment of damages be to the plaintiff, to be taxed if not agreed.

Mr Lee Hung Sang Jacky, instructed by Messrs Johnnie Yam, Jacky Lee & Co., for the plaintiff

The 1^st defendant was not represented and did not appear

The 2^nd defendant was not represented and did not appear