Siu Kam Wong and Another v. Leung Kin Hing

HCA012434/1997

HCA12434/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 12434 OF 1997

________________________

________________________

Coram: Master Barnes in Court

Date of hearing: 11 June 1999

Date of Judgment: 15 June 1999

_________________________________________________

JUDGMENT ON ASSESSMENT OF DAMAGES

_________________________________________________

Background

1. The plaintiffs are, at all material times, the owners and residents of a flat situated at 4th Floor, Fife Street, Kowloon ("the said premises"). The Defendant is, at all material times, the owner of a flat situated directly one floor above the said premises. In 1993, the Plaintiffs noticed water seepage at the ceiling of one of the bedrooms in the said premises. Investigation led them to believe that the origin of the water was from leaking pipes inside the Defendant's premises. The Plaintiffs issued a Writ of Summons against the Defendant in November 1997, alleging negligence and claiming damages for inconvenience and actual damage caused by the water seepage. Final Judgment with damages to be assessed was entered in favour of the Plaintiffs on 18th November 1998 when the Defendant failed to comply with an Unless Order to furnish Further and Better Particulars. The court is therefore not concerned with the issue of liability.

Assessment

2. The 1st Plaintiff ("PW1") who gave evidence for the Plaintiffs was the only witness called. Apart from the oral evidence, PW1 also adduced, inter alia, an Inspection Report by Masterunion Ltd. ("Masterunion") (exhibit P1) and a quotation from Since Foon Decoration Engineering Co. Ltd. ("Since Foon") (exhibit P5) to support the Plaintiffs' claim. PW1 is an elderly man who is not particularly articulate. However, I do find PW1 an honest and reliable witness and I accept his evidence.

3. Basically, the Plaintiffs' claim for damages falls into two categories:

(1) general damages for distress and inconvenience; and

(2) special damages for the repair to be carried out.

4. I will deal with the special damages first.

Special Damages

5. It is the evidence of PW1 (which I accept) that the water seepage problem was first noticed in 1993. When PW1 went to speak to the Defendant, he noticed that the partition of the Defendant's flat was such that the bathroom was directly above the bedroom in which the water seepage occurred. As the Defendant did not take any action to remedy the situation, the Plaintiffs carried out repair work costing them $29,000 and replaced damaged bedding items at a cost of $3,000. The Plaintiffs have already obtained judgment for these two sums when final judgment was given.

6. After the repair work, however, the seepage continued and extensive damage was caused to the said bedroom. Despite complaints from PW1, Defendant took no action to remedy the situation. It was not until sometime in 1996 that the Defendant caused the internal piping in his flat to be replaced by external ones. The seepage stopped immediately after the work was done. Although the seepage had stopped, unfortunately for the Plaintiffs, they were, and still are, unable to have the bedroom repaired due to financial constraint.

7. On 14th September 1997, an inspection of the said premises was carried out by Masterunion. Extensive dried water marks and rusty marks were detected and could be seen from the photographs in the report. Was suggested under paragraph 3 of the said report that "...if no major deficiencies are spotted, a ball park figure of $80,000 should be adequate for carrying out nominal cosmetic upgrading and patching up work to the affected areas of the property."

8. The Plaintiffs have also obtained a quotation from Since Foon dated 3rd February 1999. The total cost of repair would amount to $87,400.

9. The Plaintiffs have only adduced quotation from one company and there is the inevitable uncertainty as to the correctness of the amount needed when the repairs have not been carried out. Bearing in mind, however, that the estimate by Masterunion in 1997, which I find reasonable, was $80,000, I am satisfied that $87,400 is a reasonable sum to be awarded under this heading.

General Damages

10. Mr. Lee, solicitor for the Plaintiffs, referred me to the cases of Perry v Sidney Phillips & Son [1982] 1WLR 1297; Bone and another v Seale [1975] 1All ER 787; and John So & Another v Lau Man & Others, Civil Appeal No. 110 of 1993, in support of his submission that the Plaintiffs are entitled to general damages for distress and inconvenience. The facts in the John So case are fairly similar to the present one. Although the damage in that case appears to be more extensive, the period in which the Plaintiffs suffered the distress and inconvenience in the present case is much longer. I accept that the Plaintiffs are entitled to such general damages. In making the assessment, I have to (and do) take into account that the water seepage had stopped in 1996, and that it was the Plaintiffs' own financial difficulties which render the repairs not viable. Having considered the amount awarded in the John So case, I am of the view that $18,000 is a fair assessment under this heading.

Interest

11. The Plaintiffs are entitled to interest at the rate of 2% per annum on general damages from date of Writ. As to interest on special damages, bearing in mind that the water seepage nuisance was abated in 1996, the Plaintiffs have taken a long time before taking proceedings against the Defendant. I therefore only award interest from date of Writ at the rate of 5.97% per annum.

Costs

12. There is no reason why costs should not follow the event. There will be a nisi order that costs of the assessment be to the Plaintiffs, to be taxed if not agreed. Such order to be made absolute should no application be made to vary within 14 days. The Plaintiffs' own costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. A. Lee of Tai, Tang & Chong for the Plaintiffs

Defendant, acting in person, absent