Hui Yeun Fong v. Mok Mo Yin

DCCJ021492/2001

DCCJ21492/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 21492 OF 2001

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Coram: Her Honour Judge H.C. Wong in Court

Dates of Hearing: 17 to 19 and 21 February 2003

Date of Handing Down Judgment: 4 April 2003

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JUDGMENT

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1.The Plaintiff is the owner and occupier of a property situated at Flat B, 11th Floor, Oi Kwan Court, 28 Oi Kwan Road, Hong Kong (hereinafter called "the Plaintiff's flat").

2.The Defendant is the owner and occupier of the flat above the Plaintiff in the same building situated at Flat B, 12th Floor, Oi Kwan Court, 28 Oi Kwan Road, Hong Kong (hereinafter called "the Defendant's Flat").

3.The Defendant engaged a contractor and began renovation work on Flat 12B on 4 December 2000. Work was completed on 21 January 2001.

4.The Plaintiff claims that the renovation work undertaken by the Defendant generated excessive vibration and noise causing serious damage to the Plaintiff's Flat. In that, cracks appeared on the ceiling over the living room, kitchen and toilet, cracks also appeared on the walls, further damages were caused to the main door and the door frame and power failure had resulted.

5.As a result of the noise and vibration and the damages caused to her flat, the Plaintiff claims that she lost the use of her flat for 16 months and had to have the damages repaired.

6.The Plaintiff's cause of action against the Defendant is under nuisance, negligence and Rylands v. Fletcher liability.

Liability

7.The Defendant does not dispute there was renovation work undertaken at his flat (Flat 12B) between 4 December 2000 and 21 January 2001. The only dispute is whether excessive vibration and noise was generated in the process of the renovation, and whether it was the renovation work that caused the damages complained of by the Plaintiff. There are certain differences in the Plaintiff's pleaded case and the evidence of the Plaintiff Madam Hui, the pleading stated that her premises were newly renovated before her return to the flat in December 2000, this was denied by Madam Hui in Court, she claimed that at the time she had returned from a 2 weeks holiday and her flat was not newly renovated. These may have been caused by miscommunication or misunderstanding between the Plaintiff and her lawyers.

8.It is Madam Hui's evidence that she and her husband purchased Flat 11B for their own use, her daughter lived in the same neighbourhood where she paid frequent visits. In December 2000, after a two weeks visit to Beijing, she returned to her home in Flat 11B to find cracks appearing in the ceiling of her flat and some of the tiles covering the timber at the ceiling of her kitchen had fallen onto the floor. She further experienced excessive noise and vibration generated from the flat above. Upon inspection of Flat 12B, she found a workman working thereat and she claimed she saw a jack hammer lying on the floor. She alleged that the flat had already had its partition walls removed by the time she inspected it. She further saw debris consisting of concrete and steel bars left at the rear staircase of Flat 12B. Later on, on 12 December 2000, she went up to Flat 12B again with Mrs. Leung from Flat 13B and they told the workman to stop the work because of the excessive noise. It is her evidence that the work did stop for a short while, but in the days that followed work had commenced again.

9.Madam Hui claimed that further damage was done to her flat after the Defendant's resumption of renovation work. She produced exhibit P.1 (pages 55 - 68 of the bundle) - photographs on pp.55 to 59 taken on 22 December 2000 and 59 - 68 on 17 June 2001. It is her evidence that she had to move to her daughter's home because of the poor and dangerous state of her flat. She found in the days following 12 December 2000, after the Defendant's husband Mr. Cheung visited her premises, not only were there further cracks appearing on the ceiling of her flat, dust and concrete pieces began to break and fall, gradually power failure in the flat took place and the main wooden door and frame had sunken and the door could not be closed.

10.The Plaintiff's survey report prepared by Prudential Surveyors International Limited (hereinafter called "the said surveyor firm") in October 2001 confirmed the findings of spalled concrete in 5 locations based on inspections that took place on 8 May and 17 June 2001. Photographs were taken on those two occasions, and it was discovered on 17 June 2001 when the surveyors removed the false ceiling, air-conditioning fan coil and air duct in the toilet that large chunks of concrete had fallen from the ceiling to the false ceiling in the toilet. (see pp.28 - 40 of the bundle).

11.The Plaintiff's surveyors did not investigate the cause of the defects that appeared in the Plaintiff's Flat 11B.

12.The Defendant's husband Mr. Cheung Yau Cheung (DW1) gave evidence and confirmed that on 12 December 2000 he had been contacted by the management office about the noise and vibration caused by the work done at the Defendant's flat, it was a week after commencement of the renovation work. He went to inspect the Defendant's flat and the Plaintiff's flat that same afternoon and had told the workman to stop work for one day. He inspected the Plaintiff's flat because the Plaintiff had complained that the renovation work had caused cracks on the ceiling and kitchen tiles had become detached in her flat. He claimed that no jack hammers were used or seen at Flat 12B, though a electric drill and hammers were used. By that time, the two walls he had wanted to remove had been demolished completely. He denied the two walls were load bearing walls, and claimed they were brick walls.

13.He claimed that he could see at the Plaintiff's flat the ceiling had shown signs of spalling concrete and rusty steel bars were visible when he visited the Plaintiff's flat on 12 December 2000. He denied the subsequent work done at his flat had caused any excessive vibration or noise because further work performed after the demolition of the two partition walls involved removal of tiles in the small toilet. He personally heard no excessive noise or experienced any vibration, but admitted he would only visit the renovation site 3 - 4 times a week at night after he finished work at his office.

14.The documentary evidence agreed by the parties included the Incorporated Owners' Association's meeting minutes of 12 December 2000, 9 January, 12 February, 22 February and 7 March 2001 (pp.83 - 110 of the agreed bundle) and the annual general meeting minutes of 25 November 1999 (p.121 - 125 of bundle). Further evidence agreed are the 3 letters from the building's management company on the instructions of the Incorporated Owners' Association to the Defendant dated 18 January, 19 January and 27 February 2001.

15.These minutes of meeting and letters revealed that the Plaintiff and the registered owner of Flat 13B had complained to the Incorporated Owners Association and the management company about the excessive noise and vibration caused by the Defendant's renovation work at Flat 12B. There were further complaints of a cracked wall in the corridor of the public area of the 11th Floor caused by the Defendant's renovation work on the 12th floor and queried if the two walls removed by the Defendant at Flat 12B were load bearing walls. The cracked wall on the public area of 11th floor apparently had been repaired by the Defendant. The removed walls were later confirmed to be non load bearing.

16.It is Madam Hui's evidence that the Defendant's husband Mr. Cheung (DW1) had agreed to repair the damage done to her flat at the 12 December 2000 visit. However, she had insisted on obtaining a surveyor's report on the extent of the damages before the repair, this was not accepted by Mr. Cheung (DW1).

17.The Defendant's expert witness DW2 Mr. Tsang King Man, a registered Structural Engineer produced a report after his inspection of the Plaintiff's flat on 26 January 2002 (pp. 41 - 52 of the bundle). The report had taken into account the photographs taken by the Plaintiff's surveyors and those by the management office on 22 December 2002 and 17 June 2001 (pp.55 - 68 of the bundle).

18.It is DW2 Mr. Tsang's evidence that the earlier photographs of 22 December 2002 and 17 June 2001 showed evidence that the ceiling had already started spalling, and that spalling would have taken place at least one year before the photographs were taken. That the spalled concrete was caused by corrosion of the steel bars inside the concrete causing expansion in volume of the bars leading to spalling concrete. The second complaint of detached kitchen tiles was actually caused by insufficient use of glue on the tiles. He claimed that the third complaint of cracks on walls could not be found at the Plaintiff's flat. His conclusion was that the damages in the Plaintiff's flat was not due to vibration from the Defendant's decoration work.

Findings

19.From the evidence adduced before me including the evidence revealed in the agreed bundle, it is obvious that the Defendant's renovation work had caused a great deal of noise and vibration to the neighbours in flats above and below the Defendant's flat. Complaints had been made to the management company and the Incorporated Owners Committee within a few days of the commencement of the Defendant's renovation work. On 12 December, these complaints were put before the Incorporated Owners' special meeting. (See p. 83 of the bundle item 1.1). Furthermore, at the meeting on 9 January 2001, there was a complaint that the Defendant's renovation work caused a crack along the corridor on the 11th floor. (see pp. 089 - 90 items 3.2, 3.8 and 3.9).

20.There is therefore no doubt that the nature of the renovation work undertaken by the Defendant was noisy and disruptive, these had caused her neighbours to file complaints to the management company and the Incorporated Owners Committee at the time of the work.

21.The question to be decided is whether the noise and vibration caused the damages complained of by the Plaintiff.

22.The Plaintiff's counsel submitted that there are 4 issues involved, namely:

Issue I - Whether the vibration and noise generated by renovation works at the Defendant's premises constituted an actionable nuisance?

I have been referred to para. 19-06-07 of Clerk and Lindsell on Torts 18th ed. It states:

"A private nuisance may be and usually is caused by a person doing, on his own land, something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his act are not confined to his own land but extend to the land of his neighbour by:

(1) causing an encroachment on his neighbour's land, when it closely resembles trespass:

(2) causing physical damage to his neighbour's land or building or works or vegetation upon it; or

(3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.

It may be a nuisance when a person does something on his own property which interferes with his neighbour's ability to enjoy his property by putting it to profitable use. It is also a nuisance to interfere with some easement or profit or other right used or enjoyed with his neighbour's land."

Examples of the second type of nuisance are:

"Nuisances of the second kind, causing physical damage to land or to something erected or growing upon it, occur when a man allows a drain on his own land to become blocked or makes a concrete paved drive so that the water overflows onto his neighbour's land, maintains a mound of earth or other artificial erection on his own land so as to cause damp to enter his neighbour's land, works the mines under his own land so as to cause the surface of his neighbour's land to subside, allows building upon his land to become dilapidated so that they, or parts of them, fall upon his neighbour's lands, sets up vibrations on his own land which cause damage to his neighbour's buildings, or emits noxious fumes from his land which damage his neighbour's crops or trees."

Examples of the third type of nuisance are:

"Nuisances of the third kind, causing an interference with the enjoyment of land, are, for example creating stenches by the carrying on of an offensive manufacture or otherwise, causing smoke or noxious fumes to pass on to the plaintiff's property, raising clouds of coal dust, making unreasonable noises, or vibration."

"Recent dicta in the House of Lords suggest that nuisances of this third kind "will generally arise from something emanating from the defendant's land, and that the exceptional cases which do not satisfy this requirement "may go to the limit of the law of nuisance".

23.Based on the evidence of the Plaintiff Madam Hui and the complaints lodged with the Incorporated Owners Committee by other owners, I have no doubt that the renovation work undertaken by the Defendant at Flat 12B had been a nuisance to her neighbours because of the excessive noise and vibration generated.

Issue 2 - Whether the principle in Rylands v. Fletcher is applicable such that the Defendant would be liable for the loss and damage suffered by the Plaintiff?

24.The rule in Rylands v. Fletcher as stated in Clerk & Lindsell on Torts 18th ed. para. 5-56 is:-

"The rule in Rylands v. Fletcher A person who brings and keeps upon his land something which is likely to do damage if it escapes does so at his peril and consequently he cannot excuse himself for the escape on the ground that he had employed a competent contractor to place and confine the matter in the position from which it escaped."

25.This rule had been, however, given a restricted interpretation by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Countries Leather plc. [1994] 2 A.C. 264. Their Lordships took the view that in principle the rule should be seen as little more than "extension of the law of nuisance to cases of isolated escapes." (para. 20-03 Clerk & Lindsell on Torts).

26.The Plaintiff relies on the case of Hoare and Co. v. McAlpine [1923] 1 Ch. 167 where it was held that the Plaintiff's house though very old was not in such an abnormally unstable condition as to prevent the vibration being treated as an ordinary actionable nuisance. The court in Hoare v. McAlpine applied the rule in Rylands v. Fletcher.

27.The application of this rule as restricted by the House of Lords in the Cambridge Water case, clearly meant to be an extension of the law of nuisance. It is my finding that there was nuisance caused by the work at the Defendant's premises from the independent evidence of the numerous complaints lodged at the management company. The nature of the damage of the Plaintiff's flat and to the public corridor on 11th floor are consistent with the noise and vibration generated that affected not only the peaceful enjoyment of the Defendant's neighbours but the excessive force used in the removal of the partition walls and floor tiles was the cause of the damage to the Plaintiff's flat. The building in question was 12 years old at the time the incident took place, not an old building. Even if the ceiling in the Plaintiff's flat has begun to spall, had it not been for the vibration generated by the Defendant's renovation work, there would not have been such damage to the flat to the extent as those complained of. As held in the case of Hoare v. McAlpine, her flat was not in such an abnormally unstable condition to prevent the vibration being treated as an ordinary actionable nuisance.

Issue 3 - Whether there was negligence on the part of the Defendant and/or its servant in carrying out the renovation works?

28.The Plaintiff submitted that the act of nuisance is committed by an independent contractor does not absolve the liability of the owner of the land. Para. 19-51 Clerk & Lindsell on Torts, has this to say:

"Nuisance created by independent contractor Whether a person can be said to be a wrongdoer if the nuisance is created by his independent contractor depends on whether he could reasonably have foreseen that the work he had instructed the independent contractor to do was likely to result in a nuisance. In Bower v. Peate, Cockburn C.J. said:

"A man who orders work to be executed from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing someone else - whether it be the contractor employed to do the work from which the danger arises or some independent person - to do what is necessary to prevent the act he has ordered to be done from becoming wrongful."

"In Matania v. National Provincial Bank, the occupier of the first floor of a building employed contractors to carry out alterations to his premises. The work, by its noise and the dust it set up, was a nuisance to the occupier of the second and third floors and the person carrying out the alternations was held liable for the act of his contractors "just as ...... if they had let the floor down".

29.The court in the case of Bower v. Peate (1876) 1 QBD 321 confirmed the principle that:-

"A man, - who orders a work to be executed on his own premises, lawful in itself, but from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented -, is bound to see to the doing of that which is necessary to prevent the mischief; and cannot relief himself of his responsibility by employing someone else to do what is necessary to prevent the act he had ordered to be done from becoming wrongful." (at p. 321).

30.The above principle applies fully to the present case. The Defendant must have foreseen that the excessive noise and vibration caused by the drilling and knocking down of the partition walls, the toilet and the kitchen floor would cause disruption to her neighbours' lives and damages to their properties. The fact that Defendant had employed an independent contractor to undertake the work of renovation does not exonerate her from being liable.

Issue 4 - Whether the renovation work carried out at the Defendant's premises was a material cause of the damages at the Plaintiff's premises?

31.The Plaintiff's Counsel, Mr. Wong, adopted para. 5-30 of Clerk & Lindsell:-

"It is not necessary to prove that the breach alleged was the whole or even the main cause of the accident. It is sufficient to show that it materially contributed to the damage. When considering whether a claimant has established that injuries were caused or materially contributed to by negligence, the test to be applied is on the balance of probability and a cause can only be material if it is more than minimal, trivial or insignificant. Such an issue is eminently for the decision of the trial judge on the basis of medical or other evidence and the Court of Appeal will be slow to interfere."

32.In the case of Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613 at p. 621, Lord Reid said:-

"The disease is caused by the whole of the noxious material inhaled and, if that material comes from two sources, it cannot be wholly attributed to material from one source or the other ...... and the real question is whether the dust from the swing grinders materially contributed to the disease ...... A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material."

33.Further extension of the application of this concept can be found when considering foreseeability of the remoteness of damage. Para. 202 of McGregor on Damages 16th ed. on p. 125 stated:-

"Existing states of affairs: physical abnormalities of the plaintiff or of his property. It has never been seriously disputed that an admitted or established wrongdoer is liable for any increased injury to his victim by reason of an abnormal physical susceptibility. Kennedy J.'s statement of this principle in Dulieu v. White is well known:

"If a man is negligently run over or otherwise negligently injured in his body it is no answer to the sufferer's claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart."

Or in the more concise words of Lord Wright in Bourhill v. Young: "If the wrong is established the wrongdoer must take the victim as he finds him."

34.The authors of Salmond and Heuston on the Law of Torts 21st ed. p. 520 stated that:-

"The "egg-shell skull" rule This sixth exception, to the effect that the amount of damage not to be foreseen, is illustrated by the well-established rule that, at least so far as the physical condition of the victim is concerned, abnormal circumstances existing at the time of the wrongful act do not negative causal connection. So if the consequences of a slight personal injury are aggravated by the state of health of the person injured, the wrongdoer is nonetheless liable to the full extent, though he had no knowledge of that state of health and no reason to suspect it. So in the leading case of Smith v. Leech Brian &Co. Ltd. it was held that if a victim of a negligent act suffers from a pre-cancerous condition which is activated by that act, the wrongdoer is responsible for all the disastrous consequences. This is always known as the "egg-shell skull" rule."

35.The aforesaid well-establish principles of law clearly support the Plaintiff's claim that though reinforced concerete at the ceiling of the Plaintiff's flat may have already been in the initial stages of corrosion and spalling concrete had started to set in, the vibration generated by the Defendant's drilling and demolition work would have materially increased the risk of damage and contributed to the damage caused.

36.According to Mr. Tsang (DW2), it is not possible to estimate the time taken for reinforced concrete to be corroded and to spall resulting in the falling of pieces of concrete. As Mr. Tsang himself commented, it depends on many factors and it requires a great deal of research and study to determine the relationship between the age of the building, exposure and the degree of deterioration. It is however undisputed that the amount of humidity, the quality of the concrete and exposure to air are factors affecting the spalling of concrete.

37.I find the evidence of Mr. Cheung (DW1) who claimed that he was able to see the rusty steel bars inside the concrete ceiling at the Plaintiff's flat on 2 December 2000 to be incredible. According to Mr. Tsang, the steel bars are covered with several centimetres of concrete in a normal reinforced concrete ceiling slab. If the reinforced concrete steel bars were already visible and exposed on 12 December 2000, they were not evident in the photographs taken on 22 December 2000 on p. 55 - 59. These photographs were taken 10 days after Mr. Cheung visited the Plaintiff's flat, by that time work had re-commenced for over 10 days.

38.Under normal circumstances, it is unlikely for domestic premises to experience the kind of knocking and drilling work that had taken place at the Defendant's premises. The work was so disruptive that a number of the Defendant's neighbours had lodge complaints to the management company. The Plaintiff was not the only complainant according to the records of the minutes of meeting of the Incorporated Owners Committee. The letters addressed to the Defendant warning her of the numerous complaints of damages done to other units in the building reflected the position taken by the Incorporated Owners Committee. It is therefore reasonable to infer the Plaintiff's complaint is not isolated and for the Plaintiff to claim that the condition of her flat would not have been reduced to such a state had the Defendant's renovation work not taken place. The Defendant's renovation work involved drilling and demolition of two partitioning walls, removal of the flooring and tiles in the bathroom, the repositioning of the kitchen and the replacement of the plumbing and pipes in the flat leading to the corridor public area. Apart from the demolition of the two partition walls, most of the other work was conducted after 12 December 2000.

39.There were further damages unrelated to spalling concrete in the Plaintiff's flat not explained by Mr. Tsang, such as the cracks in the ceiling seen on the lower photograph on p. 59 of the Plaintiff's kitchen area, the sunken main wooden door and frame and the power failure. The evidence of these damages reflected the powerful force exerted by the drilling work and knocking down of the two walls undertaken in the Defendant's flat. It is obvious that the force was so strong that the tiles covering the timber board over the kitchen ceiling were knocked down to the floor although they might have been more secured had more glue been applied in the first place. From the evidence given by Mr. Tsang, he believed that the ceiling built of reinforced concrete had already been corroded prior to the Defendant's renovation work. It is possible that the ceiling made of reinforced concrete had begun to be corroded, parts of it became loose and were further exposed when the excessive drilling and knocking expanded the gaps in the concrete resulting in further deterioration of the corrosion process. This perhaps explains why the ceiling concrete did not fall before the photographs on pp. 55 - 59 were taken on 22 December 2000 until the cracks had allowed the corrosion to deteriorate and the expansion that took place further separated the concrete completely to allow pieces of ceiling to fall down later on. The differences in appearance can be seen in the early photographs taken on 22 December 2000 (p. 55-59) and those taken on 17 June 2001 (pp. 64-68).

40.Though Mr. Tsang (DW2) claimed that the sample of the pieces of rusty steel bars he collected on his visit in January 2002 showed that corrosion had set in for over two years or more, I am satisfied that the situation was aggravated by the force and vibration generated from the Defendant's drilling work and the knocking down of the two partitioning walls. Comparing the condition of the premises shown in the photographs taken on 22 December 2000 and those taken on 17 June 2001, the damage had clearly become more extensive and pronounced. Large pieces of concrete had fallen in the later photographs from the living room ceiling though it is unknown when the ceiling concrete in the toilet had started to fall.

41.I accept the evidence of Madam Hui that her flat was intact in appearance before she left for her trip to Beijing in late November 2000, that she returned in December and found tiles in the kitchen had fallen and cracks appearing in the ceiling of the living room with debris on the floor and there was partial power failure in her flat. I accept that she found building debris removed from the Defendant's flat deposited at the rear staircase, whether these may or may not contain reinforced concrete is not of great importance, suffice it to say there were a great deal of debris removed from the Defendant's flat. The fact that a crack appeared in the wall of the 11th floor corridor is further evidence of the force of the drilling work on the 12th floor corridor and inside the Defendant's flat by the Defendant's workmen. Again, whether a jack hammer or an ordinary electric drill was used in the renovation process is not the issue. The issues set out and explained above in paragraphs 22 - 34 may be summed up as whether excessive force was used and whether the work had became a nuisance to the Defendant's neighbours causing damage to their properties and the quiet enjoyment of their properties.

42.The Defendant must take the Plaintiff's flat where she finds it. I am satisfied on a balance of probability, that the Defendant's renovation work had speeded up the spalling and breaking off of the reinforced concrete ceiling in the Plaintiff's flat, it further knocked down the kitchen tiles, caused the Plaintiff's main door frame to collapse, cracked the Plaintiff's kitchen ceiling and caused power failure in her flat directly and indirectly. Consequently, the Defendant is liable to compensate the Plaintiff for her loss.

Quantum

43.As to the quantum of damages: The Plaintiff claims repair costs of $47,000 for re-instating the premises and a further claim of loss of enjoyment of her flat from January 2001 to April 2002 at $10,000 per month and a further sum of $10,000, the costs of survey report.

Repair Costs

44.Madam Hui produced a quotation from the contractor Tung Kee Construction Co. Ltd. dated 8 March 2001 for the repair of the damage to her flat. The quotation and receipt for payment are found on p. 77 - 78 of the bundle. For some unexplained reasons the renovation work was not done until early 2002, more than one year after the Defendant's renovation work completed. The price charged by Tung Kee, however, remained the same as the quotation in March 2001. The re-instating work by Tung Kee took 20 odd days according to Madam Hui. I accept Madam Hui's evidence that she had bargained for a reasonable price from Tung Kee and it is reasonable for her to use the same contractor the Incorporated Owners Association used. I find the repair costs reasonable and I allow it in full.

Loss of Enjoyment

45.The extent of the damage at the Plaintiff's premises is such that on 12 December 2000 it was impossible for her to stay for the noise and vibration had been excessive, paint and plaster from the ceiling were falling in the living room and there was partial power failure at the flat.

46.The condition became worse in 2001 after the Defendant's renovation work completed on 21 January 2001. It is reasonable for the Plaintiff to stay away from the premises until her flat was re-instated and damages repaired. However, it would be unreasonable for her to wait for a period of 16 months before returning to stay at her flat. It is possible to assume that she would be reluctant to let the contractors in to repair the damage until the surveyors had made an assessment of the extent of the damage and took photographs of the condition of her flat. On the other hand, the assessment could have been made soon after the Defendant's work completed. She should have mitigated her loss and not wait until early 2002 to get the repair done.

47.It is not known why the Defendant did not obtain a report from her expert Mr. Tsang until after the Plaintiff issued a writ against her. Nevertheless, the Plaintiff could still have had the damages repaired as soon as the extent of damages can be ascertained and not wait until after the writ was issued.

48.During the period of 16 months up to April 2002, the Plaintiff had been staying with her daughter who lived in the neighbourhood. She mentioned in her evidence that she was doing the cooking at her daughter's home. She insisted she has a right to keep her flat and stay there when she wanted to do so. She certainly has that right; however, it is then unlikely that she would have let the flat out pending the assessment of the damage to her flat.

49.For the aforesaid reason, the Plaintiff is not entitled to recover loss of enjoyment of her flat at $10,000 per month for a prolonged period of time of 16 months. She is entitled to obtain alternative accommodation during the Defendant's renovation period because of the noise and the falling debris. Subsequently, after 21 January 2001, as there was power failure, the damaged door and falling debris from the ceiling, she is entitled to have the damages repaired after a reasonable period to ascertain the full extent of the damage. As the quotation of repair was made in March 2001, one would have expected that the repair work would have taken place sooner after. This delay was due to the Plaintiff's failure in getting the surveyors to inspect the premises before May and June 2001 and for some unexplained reason the report was not prepared until October 2001. This shows the Plaintiff was not in urgent need to return to live in her flat or Plaintiff was undecided as far as the repair work was concerned. The Defendant should not be expected to pay for the Plaintiff's indecision and inaction.

50.Based on my finding that the Plaintiff should have the premises repaired as soon as the Defendant completed the renovation work after having the damage assessed, I assess under the head of loss of enjoyment, a compensation for a period of 4 1/2 months from mid-December 2001 to end of April 2001 would be reasonable. I shall therefore allow the sum of $45,000 at $10,000 per month as compensation to the Plaintiff's loss of enjoyment of her flat.

Surveyor's Fees

51.There was no suggestion from the Defendant that the amount of $10,000 surveyor's fee was unreasonable. I therefore allow it in full.

Conclusion

52.The Plaintiff is entitled to recover the following:

Repair costs	$47,000
Loss of enjoyment of property	$45,000
Surveyor's fees	$10,000
	_______
	$102,000
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53.Costs nisi - Costs follow the event, I cannot see any reason why the Defendant should not pay the Plaintiff's costs and I so order, with certificate for counsel with liberty to apply within 14 days.

Representation:

Mr. Anson M.K. Wong instructed by Messrs. Hobson & Ma for the Plaintiff.

Mr. Joseph S.W. Lam instructed by Messrs. William Sin & So for the Defendant.