Chan Fei Lung v. Mansion Products Ltd and Others

HCA000336/1990

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Perrior in Court

Dates of Hearing: 29 May and 9 June 1990

Date of Judgment: 22 June 1990

Date of Delivery: 2 July 1990

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ASSESSMENT OF DAMAGES

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1. The Plaintiff is the registered owner of a detached house situate at 2 Suffolk Road, Kowloon.

2. The 1st Defendant is the registered owner and developer of the adjacent property, 3 Suffolk Road; the 2nd Defendant is the 1st Defendant's architect and the 3rd Defendant its main building contractor.

3. On the 5th December 1988, during the course of construction work on the 1st Defendant's said adjacent property, the Plaintiff's boundary wall collapsed and the surrounding area of the Plaintiff's property comprising the yard, kitchen, washing and drying areas were severely damaged. In addition thereto the Plaintiff claimed that the fittings and furniture therein were damaged beyond repair. The Plaintiff claimed that the damage he suffered was as a result of the Defendants' negligence and breach of duty of care.

4. On the 6th and 10th February 1990 the Plaintiff obtained interlocutory judgment in default of defence against the 1st and 2nd Defendants. For the sake of completeness I mention here that the 3rd Defendant has filed a defence. No further steps have been taken against the 3rd Defendant and accordingly any award which I make herein is against the 1st and 2nd Defendants.

5. Annexed to the Statement of Claim is a Schedule. Prior to the hearing before me agreement was reached between the parties in respect of a number of items, which I need not list in extenso, amounting to $77,818.90 and accordingly I award the Plaintiff this sum.

6. The items of claim which are disputed are:-

7. The Plaintiff gave evidence on his own behalf and, in addition, called a Mr. H.F. Wong (PW2) who, as manager of the Plaintiff's business, took overall charge of the repairs and restoration work.

8. The defendants called no witnesses.

9. At the commencement of the assessment Miss Eu tendered a most useful bundle on behalf of the Plaintiff without objection from Mr. Wong for the defence.

10. I propose to deal with the outstanding items of claim in reverse order because I am able to dispose of (b) and (c) quite shortly.

11. As is clear from the photographs in the Plaintiff's bundle his property was badly damaged. The repairs thereto, although carried out expeditiously, took approximately three months. It is clear to me from the invoice for the repairs, and the other items of claim, in the Schedule to the Statement of Claim, that the work had to be co-ordinated and involved the employment of a number of different tradesmen.

12. Mr. Wong submitted that, as PW2 visited the Plaintiff's property on a daily basis, the employment of a site foreman was a luxury and by hypothesis his wages and allowances could not be claimed from the Defendant. I am wholly unpersuaded by that submission. PW2's other duties precluded him from being on the site on a full time basis. His visits were sometimes of less than 30 minutes duration and never more than half a day. In my judgment it was perfectly reasonable for the Plaintiff to employ a full time site foreman to co-ordinate and oversee the work. Further I find that the wages and allowances paid to him are reasonable as was the length of time he was employed. Thus I award the full amount claimed in this item, namely $14,156.70.

13. So far as the refrigerator, washing machine and clothes drier are concerned, there is no dispute that they were damaged when the scullery collapsed. Similarly, it is accepted that although they were only a few months old at the time they were damaged, they were replaced by new machines at a total cost of $16,880.00.

14. As to whether they should have been replaced by new or second hand machines is academic for, as Mr. Wong rightly pointed out, there is no evidence before the Court to show that they were damaged beyond repair in the accident. Indeed, so far as there is any evidence on this point the damage would appear to be relatively superficial scratches and dents to the external surfaces of the machines. It is possible to have such damage repaired. I can understand that, such is the nature of the Plaintiff's establishment, it did not occur to him to have the machines repaired, or if it did he considered it inappropriate so to do. Whilst one can respect that position it would not be correct for me to order the Defendant to pay for it.

15. As the precise extent of the damage to the machines is not detailed anywhere in the evidence I propose to award a nominal sum of $500 per machine, which should suffice to cover repairs to the cabinets of the same. Hence under item (b) I award $1,500.00.

16. Now I turn to the main area of dispute at this hearing namely the repairs and decoration work.

17. The claim under this head is encapsulated in an invoice from Continental Design and Contracting Co. Ltd.

18. Both the Plaintiff and PW2 spoke to it and were cross-examined on it. It is correct, as Mr. Wong submitted, that the maker of the invoice was not called and that a hearsay notice was not served in respect of it. Clearly, it would have been more satisfactory if that had been done, but it was put before me without objection and in particular the Plaintiff, whom it will be recalled resides in the house, stated in his evidence in chief that it "sets out the detailed schedule of work" carried out. This was not challenged in cross-examination, the only challenge being as to whether there was sufficient nexus between the damage caused by the Defendants and the repair and, in particular, decoration work carried. Further, PW2 gave detailed evidence as to the work carried out at the Plaintiff's property.

19. Thus, whilst of note Mr. Wong's submission I do not consider that on the facts of this action it is of any material assistance to him.

20. In the premises therefor I make a preliminary finding that the Plaintiff did have the work carried out in accordance with the said invoice at a cost of $240,878.00.

21. Now that I have made that finding I propose to consider whether or not the works detailed therein were directly attributable to the damage caused to the Plaintiff's property by the Defendant.

22. In order so to do, firstly I must consider the type of property which one is considering. The property is situate in Suffolk Road Kowloon. This, despite its proximity to the flight path to Kai Tak Airport, is one of the best residential areas in the Kowloon Peninsula and, from the photographs contained in the Plaintiff's bundle, one can see that the Plaintiff's house is substantial and built to a high standard.

23. It follows from that that I consider that it is reasonable for the Plaintiff to carry out repairs and decorations to a standard commensurate with the standard of the property. However, this does not mean that the Plaintiff has carte blanche to re-decorate the whole of the exterior of his home, or its surrounding wall, at the expense of the Defendants. On the other hand, for example, for the reasons aforesaid, I do not consider that it was unreasonable for the Plaintiff to decorate the garden wall, and ironwork on top of it, to an extent greater than the immediate damage, so that the damaged part blends in with the whole.

24. Against that background I will consider the specific objections taken by Mr. Wong. For ease of reference I will attribute to them the numbers given to them in the said invoice:-

25. Thus the total amount awarded under this head is $191,437.00.

26. In addition the Plaintiff also claimed damages for nuisance. If any authority is needed for the proposition that such a claim is sustainable it can be found in the judgment of Master J. Chan in Wong Choi Kui v. Poon Pau Wo Nelson trading as Thorough Construction Co. 1988 No.A2482 (unreported). I adopt Master J. Chan's reasoning in that judgment.

27. The Plaintiff explained how he was greatly concerned by his loss of security, which seems to me to be a particular valid fear given the situation of his property vis-a-vis less desireable areas of Kowloon. Further the house was without any services for a number of days and, whilst one cannot really class the need to eat out in Hong Kong as any great heardship, it is inconvenient and the lack of bathing and sanitation facilities can certainly be regarded as a hardship.

28. Unhappily the nuisance caused to the Plaintiff does not end there for the Plaintiff and his family, which includes his mother of 100 years of age, had to endure the inconvenience of workman, dust and rubble for some two months.

29. Finally, the Plaintiff said, and it is clear from the correspondence that this is so, that the Defendants agreed to make good the damage but wholly failed to make good their promise.

30. To his credit Mr. Wong did not seek to justify the Defendants' behaviour, or dispute this head of claim in principle, but instead he made a rather novel submission, namely that as the Defendants were already making such a lot of noise and dust on the 1st Defendant's adjacent site a little more on the Plaintiff's property made no material difference. I find this submission entirely without merit.

31. In making an award under this head I take all the above factors into account and in addition thereto I take into account in the fact that it is common ground that the Plaintiff is a man of considerable substance who enjoyed a high degree of comfort in his home prior to the Defendants' negligent acts and the nuisance they caused. Thus I consider that an appropriate award in the present action is $25,000.00 and accordingly that sum is awarded.

32. In the premises therefore the total damages awarded herein to the Plaintiff are $309,912.60. After careful consideration, for it is a point not without difficulty, I consider it equitable for interest to run on the said sum at the judgment rate from the date of writ to payment. There will be an order nisi for costs to the Plaintiff with a certificate for counsel.

Dated this 22nd day of June 1990.

Representation:

Miss A. Eu instructed by Messrs. Oscar Lai & Ho for the Plaintiff.

Mr. P.H. Wong instructed by Messrs. P.T. Yeung & Tang for the 1st and 2nd Defendants.