Lam Eguchi Mayumi v. Fast Well Enterprise (HK) Ltd

DCCJ 3702/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3702 OF 2008

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Coram: Her Honour Judge Anthea Pang in Court

Date of Trial: 12 March 2010

Date ofHanding Down Judgment: 31 March 2010

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J U D G M E N T

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Introduction

1.Since July 1996, the Plaintiff has been the registered owner of Apartment B, Upper and Lower Level of the 3^rd Floor of the Somerset, No. 67 Repulse Bay Road, Hong Kong (‘the 3/F Flat’). At all the material times, the Plaintiff was the occupier of the 3/F Flat and she lived in the premises with her husband and two dogs.

2.Since April 2008, the Defendant has been the registered owner of Apartment B, Upper and Lower Level of the 4^th Floor of the Somerset (‘the 4/F Flat’) which is directly above the 3/F Flat.

3.The Plaintiff brings this action under (a) nuisance; (b) negligence and (c) breach of the Deed of Mutual Covenant. She claims that because of water leakage from the 4/F Flat to the 3/F Flat, damages were caused to the living room, the master bedroom, the study room, the storeroom and the wardrobe installed in the bedroom of the 3/F Flat. 

4.At trial, the Defendant was absent but the records showed that the Defendant had been duly notified of the trial date and had been duly served with all the relevant papers. I therefore directed that the trial should proceed in the absence of the Defendant. 

The Evidence

(1) The Water Seepage

5.The Plaintiff told the Court that although the Defendant had given notice to the building’s management office, the Somerset Management Office (‘SMO’), that renovation work would commence on 8 July 2008 at the 4/F Flat, in June 2008, she started noticing a lot of drilling noise as well as banging and hammering sounds, which emanated from above. She said that she often could not hear herself when talking on the telephone and she had to step out from the 3/F Flat in order to talk on the phone. She also said that, sometimes, she could even feel some vibration.

6.On 25 June 2008, while the Plaintiff was at home waiting for a friend, she said she discovered some water marks on the ceiling of the living room of the 3/F Flat. The Plaintiff also noticed that water was dripping from above and various parts of her property were affected. As a result, she had to place buckets and cloth/towel on the floor to absorb the water dripped from the ceiling. The Plaintiff said, in view of what happened, she immediately notified the security guard of the building and the staff of SMO.  

7.According to the Plaintiff, she was later informed by the staff of SMO that an inspection was subsequently conducted at the 4/F Flat in the presence of a representative of the Defendant. It was found that water had accumulated on the balcony floor and the living room floor of the 4/F Flat. She was also told that following the inspection, SMO had issued a letter to the Defendant, recording the incident and requiring necessary work to be carried out.

8.The Plaintiff told the Court that the situation, however, did not improve. In total, she had made 4 complaints to SMO between 25 June 2008 and 16 August 2008 about various water seepage problems originated from the 4/F Flat. The first complaint she made on 25 June 2008 was the one outlined above.

9.Then, on 9 July 2008, the Plaintiff made the second complaint and that was in relation to water seepage and water dripping at the ceiling of the master bedroom. Again, she notified the staff of SMO and inspection of the 4/F Flat was carried out later that day by the staff of SMO in the presence of a representative of the Defendant. During the inspection, it was found that water had again accumulated on the balcony floor of the 4/F Flat. A letter recording the incident and requiring necessary action to be done was again sent by SMO to the Defendant. On this occasion, some photographs were taken of the 3/F Flat by the staff of SMO.

10.On 10 July 2008, the Plaintiff found that there was water seepage at the ceilings of the living room, the master bedroom, the storeroom, and the study room. Bedding and some of the Plaintiff’s belongings were damaged and the same had to be removed in order to avoid further damage. In addition, the Plaintiff said she discovered cracks on various parts of the ceilings of the living room and the master bedroom. The staff of SMO informed the Plaintiff that, on that day, workers damaged the flush water pipe in the 4/F Flat when carrying out the renovation work, which then led to the accumulation of water on the floor. During the inspection of the 4/F Flat and the 3/F Flat carried out on that day, the staff of SMO took some photographs for the record and also issued another letter to the Defendant recording the incident. Owing to the water seepage problem and for safety reasons, the Plaintiff engaged a contractor to inspect the 3/F Flat on 15 July 2008. 

11.On 16 August 2008, the Plaintiff again found water seepage at the master bedroom ceiling. However, as the Defendant or its representative/agent could not be located there and then, no inspection of the 4/F Flat was carried out on that day. Subsequently, on 18 August 2008, the staff of SMO visited the 4/F Flat and found water seeping from the flush water supply pipe of the unit. Workers at the 4/F Flat then conducted repair work but were unsuccessful. The repair work was subsequently completed on 19 August 2008. Later on, a letter was sent by SMO to the Defendant recording the incident and urging the Defendant to exercise proper care when carrying out the renovation work. On 20 August 2008, the Plaintiff again engaged a contractor to examine the water seepage problem in the master bedroom but was told that as the water came from above, there was nothing that she could do.

12.On 15 July 2008, the Plaintiff instructed her solicitors to issue a letter to the Defendant, notifying the Defendant of the relevant water seepage incidents and requiring remedial work to be carried out. A similar letter was also sent on 16 August 2008. These letters and the letters sent by SMO to the Defendant mentioned above were produced at trial. Further, the Plaintiff said that even after the Writ of Summons in this action had been issued, the situation did not improve. On 23 September 2008, she discovered that the canvas covering the scaffolding of the 4/F Flat fell onto the air-conditioning units of the 3/F Flat and she noticed water marks reappearing at the ceilings and the walls of the 3/F Flat, including the storeroom.

(2) The Expert Opinion

13.Mr. Lee Kwok Chuen, a chartered building surveyor instructed by the Plaintiff, testified at trial. Mr. Lee told the Court that he has had 10 years’ experience in conducting and supervising water leakage repair work. He said that he carried out an inspection of the 3/F Flat on 3 November 2008. It was a visual inspection but a moisture meter was used to record the condition of the walls and the ceilings. His findings during the inspection were as follows :

(a)  the ceilings of the study room and the master bedroom were noted to have higher than normal moisture levels with readings of 20 and 18 respectively. The normal range should be between 6 and 16;

(b) a hairline crack, which is a thin line crack, was noted at the ceiling of the living room;

(c)  signs of dampness and hairline cracks were noted at the ceiling of the master bedroom;

(d) signs of water leakage were noted at the window-frame and the hinge of the master bathroom;

(e)  signs of dampness were noted at the ceiling of the study room;

(f)   signs of dampness and a hairline crack were noted at the false ceiling of the study room;

(g)  signs of dampness and peeling off of the paint were noted at the ceiling of the storeroom inside the study room;

(h)  signs of dampness were noted at the ceiling of the bedroom; and

(i)    brown stains were noted at the top inner surface of the wardrobe immediately below the ceiling of the bedroom.   

14.Mr. Lee commented that as most of the signs of dampness were found not close to the external wall, it would be remote that the water seepage was due to external weather. Moreover, as signs of dampness were mostly found at the ceilings, the most probable cause of the water seepage would be the accumulation of water on the floor of the 4/F Flat. Mr. Lee said that according to the staff of SMO, all the windows of the 4/F Flat had been removed during the renovation. He said that, therefore, during rainy days, there were no windows to stop the rainwater from coming in. When the rain was heavy, rainwater would accumulate. Since there would not be any drain points in the living room and the drain in the balcony might not be able to drain off the rainwater properly, the water thus accumulated on the floor would then seep into the ceiling of the premises downstairs. In addition, as there was bursting of the flush water pipe in the 4/F Flat on two occasions, water would accumulate on the floor of the master bedroom and the master bathroom of the 4/F Flat, which would then seep into the ceiling of the master bedroom of the 3/F Flat.

15.Mr. Lee added that since the hairline cracks were found near the signs of dampness, it was likely that the cracks were caused by the water seepage from the upper floor unit, not because of normal wear and tear.

16.After examining the affected areas in the 3/F Flat, Mr. Lee estimated that the repair cost would be HK$68,500 which would include the replacement of the wardrobe in the bedroom. Mr. Lee explained that since the wardrobe is made of wood and is built up to the ceiling, the whole wardrobe would have to be replaced for the sake of giving a consistent look and in order to avoid the formation of mould caused by the seepage of water.

Findings

17.I find both the Plaintiff and Mr. Lee to be honest witnesses. I have no doubt that between June and August 2008, the Plaintiff noticed water seepage/dripping in the 3/F Flat and that she had made a total of 4 complaints to the staff of SMO. I also accept that on the first two occasions (25 June 2008 and 9 July 2008), water was found to have accumulated on the floor of the 4/F Flat whereas on the last two occasions (10 July 2008 and 16 August 2008), the flush water pipe in the 4/F Flat was damaged and there was water on the floor. Such accumulation of water caused the water seepage/dripping problems in the 3/F Flat.

Nuisance

18.For the Plaintiff to succeed in this cause of action, the Plaintiff has to prove on the balance of probabilities that the water originated from the 4/F Flat and that the Defendant had actual or constructive knowledge about this [see 張秀玲及另一人 對 鄭禮莊 CACV No. 268/1998, unrep. (9 April 1999)].

19.On the evidence before me, I have no doubt that the accumulation of water on the floor of the 4/F Flat caused the water seepage problems in the 3/F Flat.

20.On the first two occasions, the reason for the accumulation was probably due to rainwater coming into the 4/F Flat during heavy rainfalls. The photographs and documents included in the bundle showed that window alteration work was carried out at the living room, the bedrooms and the balcony of the 4/F Flat during the renovation. When the windows were removed and when there was inadequate floor drain, rainwater would accumulate on the floor as observed by the staff of SMO. On the last two occasions, it is clear that water accumulated on the floor as a result of the bursting of the flush water supply pipe in the 4/F Flat.

21.I find that the Defendant must have been aware of the water seepage problem shortly after the Plaintiff made the first complaint on 25 June 2008. This complaint was made known to the Defendant or its agent and it then led to the inspection of the 4/F Flat by the staff of SMO in the presence of the Defendant’s representative. It is, however, clear that despite the Defendant’s knowledge about the water seepage problem and despite the warning letter from SMO, no, or no proper, action was taken to prevent the seepage or to address the problem of accumulation of water in the 4/F Flat because water was again found to have been accumulated on the balcony floor of the 4/F Flat when the Plaintiff noticed, for the second time, water seepage problem on 9 July 2008.

22.In respect of the accumulation of water due to the bursting of the flush water pipe in the 4/F Flat, I find that shortly after the Plaintiff made the third complaint on 10 July 2008, the Defendant must have been aware of the fact that its renovation workers had damaged the pipe. In fact, according to the staff of SMO, it was at the request of the representative of the Defendant that the supply of flush water was suspended for all apartments B on 10 July 2008. However, despite this incident and the warning letter from SMO, the flush water pipe in the 4/F Flat was again damaged around 16 August 2008 for the Plaintiff again noticed water seepage at the ceiling of the master bathroom in the morning of 16 August 2008. As a result, she made the fourth complaint. This time, despite the efforts made to contact the Defendant or its agent/representative and despite the leaving of messages by the staff of SMO, the Defendant’s representative only turned up that night about 12 hours after the complaint had been made by the Plaintiff. Repair work of the pipe was carried out on 18 August 2008 and was completed on 19 August 2008.

23.Para. 20-53 at page 1191 of Clerk & Lindsell on Torts (19^th ed.) reads,

“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.”      

24.In the present case, when the Defendant ordered window alteration work to be carried out in the 4/F Flat, the Defendant could reasonably have foreseen that with the removal of windows, and at times of heavy rainfalls, rainwater could easily enter the premises and could easily accumulate on the floor which could then cause water seepage problem. At the very least, the Defendant must have foreseen the problem after it had been notified of the Plaintiff’s complaint made on 25 June 2008. However, no, or no proper, preventive measures were taken and water accumulation was again found on 9 July 2008.

25.Similarly, after the Defendant had been notified of the bursting of the flush water pipe in the 4/F Flat and the water seepage problem in the 3/F Flat on 10 July 2008, it could reasonably have foreseen that if the pipe was not handled properly or with care and attention, it could burst easily and could lead to water seepage problem. However, despite the incident on 10 July 2008, damage was again caused to the flush water pipe in the 4/F Flat on 16 August 2008, on which day the Plaintiff again noticed water seepage at the ceiling of the master bedroom. This showed that the Defendant either did not pay attention to the problem or did not adopt any proper means to prevent the problem from recurring.

26.All in all, I find that nuisance has been proved against the Defendant in this case. The water seepage/dripping problems found in the 3/F Flat were caused by the accumulation of water on the floor of the 4/F Flat and the bursting of the flush water pipe therein during the relevant times. As set out above, the Defendant, being the owner of the 4/F Flat, must have known of these problems through the notifications given by SMO. The fact that an independent contractor had been employed to undertake the renovation work does not absolve the Defendant from liability.

Negligence

27.Given the reasons above, I also find that the Defendant was negligent when carrying out the renovation work in the 4/F Flat, thus causing the water seepage/dripping problems in the 3/F Flat.

Breach of the DMC 

28.Clause 22 and Clauses 4 to 6(a) of the Second Schedule of the Deed of Mutual Covenant of the Somerset stipulate that,

“22.  Each Owner may place in his own Unit at his own expense any additions, improvements, fixtures, fittings and decoration Provided the same may be installed fixed and removed without structural damage to or interference with the enjoyment of the Buildings or any part(s) thereof or any of the services apparatus and equipment of the Buildings and each such Owner shall have the right to remove the same at his own expense Provided Always that such internal alteration, additions and improvements shall comply with all Government regulations and ordinances.”

4.  To keep the interior of each Unit of which he is for the time being the Owner and all electrical and sanitary appliances and other services therein in good repair and condition and to maintain the same in a manner so as to avoid any loss, damage, nuisance or annoyance to the Owner or occupier of any other portion(s) in the Buildings.

5.  Save as provided in Clause 22 hereof, not to make any structural alteration to any Unit, Parking Space or area of which he is the Owner which may damage, or affect or interfere with the use and enjoyment of any other part of the Buildings whether in separate or common occupation or use, nor cut, injury, damage, alter or interfere with any part or parts of the Buildings in common use or any of the sewers, drains, water-courses, conduits, pipes, cable wiring, fixtures, equipment, apparatus or services of any part of the Buildings. This restriction shall apply to the Manger as well.

6(a)  Not to use or permit or suffer any Unit, Parking Space or area of which he is the Owner to be used for any illegal or immoral purpose nor do, cause or permit or suffer to be done any act or thing in any such Unit, Parking Space or other portion of the Buildings which may be or become a nuisance or annoyance to or cause damage to other Owners and occupiers for the time being of the Buildings.” (emphasis added)

29.Since I have found that the source of the water seepage in the 3/F Flat was from the 4/F Flat; that the seepage problems were caused by the accumulation of water on the floor of the 4/F Flat and the bursting of the flush water pipe therein; and that the Defendant must have known of the problems but failed to take reasonable steps to address the problems, thus causing damages to the 3/F Flat and creating nuisance, the Defendant has breached the clauses set out above.

Damages 

30.The Plaintiff claims the following damages:

(1) HK$7,000 as the costs incurred for instructing an engineering company to conduct emergency inspections of the 3/F Flat following the discovery of the water seepage problems;

(2) HK$68,500 as repair costs;

(3) HK$11,000 as the surveyor’s fees for compiling the expert report; and

(4) HK$240,000 as the costs to seek alternative accommodation during the period when repair work is carried out.

31.I find items (1) and (2) to be reasonable expenses. I allow these claims accordingly.

32.In respect of the surveyor’s fees set out in item (3), I consider that this should more appropriately be dealt with as part of the costs of this action, rather than as damages suffered by the Plaintiff.

33.Insofar as item (4), the costs of alternative accommodation, is concerned, I am not prepared to allow the claimed amount in full. This sum is for renting an apartment of around 2,500 sq. ft. in the same district as that of the 3/F Flat for 1½ months. The Plaintiff said that this period would have taken into account the time required for the removal of furniture before the commencement of the repair work and the return of the furniture afterwards as the expert’s estimate of 1 month had not yet included such time.

34.While I accept that one would require time to do the packing and unpacking, such work would probably need to be carried out by the Plaintiff in the premises. I am therefore not convinced that alternative accommodation would be required during these periods. In the normal course of events, once packing is done, it would probably take just one day, or at most two, for the moving out of the furniture. For the return of the furniture, probably the same number of days would be required. Since the expert’s assessment was that it would only take about 1 month to have the repair work done, a few days on top of this estimate should not lead to 1½ months. Therefore, concerning the period during which alternative accommodation would be required, I am only prepared to allow one month.

35.I shall now move on to consider the costs of the alternative accommodation. It was the Plaintiff’s evidence that although the 3/F Flat is of an area of 3,099 sq. ft., she lives there with her husband and two dogs only. The Plaintiff said that since she has two large dogs, she would probably not be able to find alternative accommodation in a hotel. Her choices would therefore be limited.

36.While I accept that it might not be feasible for the Plaintiff to seek alternative accommodation in a hotel because of her two large dogs, I do not consider it reasonable to seek alternative accommodation in an apartment of the size of 2,500 sq. ft., which is what the Plaintiff now asks for. In this case, we are only talking about providing a temporary accommodation for two adults and two dogs. It is understandable that the Plaintiff might be used to a very spacious living environment as the 3/F Flat is of a large size. However, when one seeks alternative accommodation which is temporary in nature, one could not say that an apartment, which is, say, of 1,500 sq. ft. would be an unreasonable choice for 2 adults and 2 dogs or would be too unacceptable even though the family is used to live in a 3,000 sq. ft. apartment.

37.From the documents provided by the Plaintiff, it is noted that to rent an apartment of about 1,500 sq. ft. in the district in which the 3/F Flat is located, it would cost between HK$36,000 and HK$80,000 for a month. Since I find that the reasonable duration during which alternative accommodation would be required is about one month, and since I find that an apartment of about 1,500 sq. ft. would be reasonable alternative accommodation in the Plaintiff’s case, I am prepared to allow a sum of HK$60,000 as the costs of alternative accommodation.

Conclusion

38.For the reasons set out above, the Plaintiff succeeds in this action and I give judgment in favour of the Plaintiff to recover loss and damages in the total amount of HK$135,500, with interest thereon at the judgment rate from the date of the writ until payment. The break-down of the sum of HK$135,500 is as follows :

(1)  HK$7,000 as the costs incurred for conducting emergency inspections of the 3/F Flat;

(2)  HK$68,500 as repair costs; and

(3)  HK$60,000 as the costs to seek alternative accommodation.

39.I also make an order nisi that the Defendant is to pay the Plaintiff’s costs in this action, to be taxed if not agreed, with a certificate for one counsel. If no application is made within 14 days from the date of this judgment to vary the order, the costs order nisi shall become absolute. 

Mr. Felix Hoe and Ms. Shrina Daswani, instructed by Messrs Li, Wong, Lam & W. I. Cheung for the Plaintiff

The Defendant, in person, absent