Ng Yuen Han v. Lam Fei Fui and Another

[English Translation – 英譯本]
CACV 285/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINSTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 285 OF 2011

(ON APPEAL FROM DCCJ NO. 2852 OF 2008)

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BETWEEN  

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JUDGMENT

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Hon Poon J (giving the judgment of the Court):

Introduction

1.The Plaintiff is the owner of Flat A, 3/F, No. 10 Shiu Wo Street, Tsuen Wan (“Flat 3A”) and has been living there since 1996. The Defendants purchased Flat 4A of the same building (“Flat 4A”) on 15^th March 2008 and have leased it out.

2.At the end of 2005, the previous owner of Flat 4A altered the unit into two suites for lease. The Plaintiff claims that since then in Flat 3A she can clearly hear the sounds coming from Flat 4A such as the sounds of the tenants’ walking, cutting vegetables, dropping chopsticks and getting out of bed late at night. These sounds have caused a severe nuisance to her and her family and sometimes made it hard for them to watch TV, read a book and even sleep. In her opinion, it is because after the partitions of Flat 4A have been altered, the altered floor slab structure and the additional water pipes transmit sounds more readily than before, and yet the replaced floor tiles fail to provide effective soundproofing. 

3.The Plaintiff also claims that prior to the alteration of Flat 4A, there was no sewer or water pipe at the ceiling of her bedroom. However, after the alteration, a toilet was added above her bedroom with the new sewer and water pipe not being properly installed or waterproofing not being properly dealt with. This resulted in water seeping into her bedroom’s ceiling of which the colour has changed from white to black with popped up surface.           

4.The Plaintiff has tried to reason the matter out with the previous owner of Flat 4A but in vain. She has also made complaints to the Environmental Protection Department (“EPD”) and the Food and Environmental Hygiene Department (“FEHD”), but in vain too. The condition has still not been improved since the Defendants have purchased Flat 4A.

5.Therefore, in July 2008 the Plaintiff filed an action and asked the District Court to compel the Defendants to carry out repairs to resolve the problems of water seepage and noise completely and to compensate her for the cost of repair and mental damage. 

6.The defences put forward by the Defendants are that the water seepage has already ceased since they have purchased Flat 4A and that neither they nor the tenants have made any alteration or conversion to the unit, so they should not be held responsible for the previous water seepage and the Plaintiff should have pursued the matter against the previous owner. As for the so-called noise problem, in fact it arose from the tenants’ ordinary daily activities, and the replaced floor tiles would not have caused any nuisance.

7.At trial, both parties testified and called their jointly appointed expert witness Wong Man Hong, a surveyor (“Mr. Wong”). The Defendants also called Tam Wai Keung, Senior Environmental Protection Inspector of the EPD, and Chan Kwok Hung, a staff member of FEHD (“Mr. Chan”). Mr. Chan’s duties include managing food hygiene, environmental hygiene and water seepage in buildings in Tsuen Wan District.  

8.After trial, Deputy District Judge Lo (as she then was) ruled against the Plaintiff, dismissed her claim and ordered her to pay the Defendants’ costs in the sum of HK$56,450 as well as the cost of the surveyor’s report.

9.The Plaintiff felt aggrieved and now lodges an appeal, asking this Court to dismiss the Judge’s ruling and to make an order that the Defendants should undertake the repair by replacing the floor tiles in order to abate the noise and pay her damages for mental distress and costs. 

Water seepage

10.The basic facts about the water seepage are not disputed.

11.Mr. Chan testified that according to the record, on 9^th November 2007, his colleague Lau Ho Kwan (“Mr. Lau”), an Environmental Nuisance Investigator, who has left the post, went to Flat 3A to carry out a moisture test on the ceiling and to measure the water stain on the ceiling of the Plaintiff’s bedroom. The water stain was found to be 20 x 20 cm² and the moisture content was found to vary from 8% to 12%. As the moisture content did not reach the 35% threshold for further investigation or enforcement action set down by the Joint Office of FEHD and Buildings Department, no further action was taken. On 14^th March 2008, Mr. Lau went to Flat 3A again to measure the water stain and found that it had expanded to 40 x 40 cm². However, the moisture content still did not exceed the 35% threshold for enforcement, therefore there was still no action being taken.

12.On 4^th August 2009, Mr. Wong went to Flats 3A and 4A to carry out inspections and tests, and the results were:

(1)       The thickness of the floor slab in Flat 4A was that of the floor slab in ordinary domestic units.

(2)       Flat 4A was divided into 2 suites, each having its own kitchen, living room, (bed)room and toilet.

(3)       The water mark found on the ceiling of Flat 3A’s bedroom was about 2 square metres. Infrared inspection revealed that that part of the ceiling was damp, i.e. moisture still existed.

13.Mr. Wong testified that according to what he saw that day, the partitions of Flat 4A had been substantially altered, including changing water pipelines. The surface of the external wall was in good condition and so the water mark on the ceiling of Flat 3A was probably caused by unfinished or improper waterproofing of the floor slabs of the kitchen and the toilet in Flat 4A, or by broken water pipes or pipelines concealed underneath the floor tiles of Flat 4A. During cross-examination, the Defendants disputed whether the moisture was left behind during the renovation at the end of 2005 but Mr. Wong said that it was impossible because the tests were conducted 3 years later.     

14.According to the evidence given by Mr. Chan and Mr. Wong, the indisputable facts are that the water seepage on the ceiling of Flat 3A’s bedroom is caused by improper waterproofing of the floor slabs of the kitchen and the toilet in Flat 4A or by broken water pipes inside the floor slabs; and that the water seepage has already occurred since 9^th November 2007, it has continued and deteriorated before 14^th March 2008 and has still continued until at least 4^th August 2009 after the Defendants have purchased Flat 4A.

15.However, the Judge said:

“51. However, I have also noticed that the Plaintiff’s statement of claim dated 6^th July 2008 in relation to DCCJ 2852/2008 pointed out that ‘initially water seepage occurred on the ceiling of my room and the ceiling wall paper has popped up (most part of it is dry now but the black water stain still exists)’.

52.    Moreover, the Plaintiff’s statement of claim dated 20^th November 2008 in relation to the consolidated cases pointed out that ‘initially water seepage occurred on the ceiling of my room and the ceiling wall paper has turned from white to black and popped up (most part of it is dry now but the black water stain still exists and has not dissipated)’.

53.    Later, when the Plaintiff amended her statement of claim on 6^th September 2010, she has only amended ‘the black water stain still exists and has not dissipated’ into ‘the 2-square-metre black water stain still exists and has not dissipated’.   

54.    Obviously, when this action was filed, the Plaintiff was holding a subjective view that the water seepage had ceased already and the water stain had gradually faded.

55.    The Plaintiff has lived in Flat 3A at all material times and still lives there now. Although she has only relied on visual inspections of the water seepage on the ceiling with bare eyes, she should be able to know the relative seriousness of the water seepage. Therefore, in my opinion, the water seepage condition had already improved when the Plaintiff was preparing her statement of claim.

56.    In fact, did the water seepage still continue when the Defendants of this action purchased Flat 4A on 15^th March 2008?

57.    As the area of the water stain on the ceiling of Flat 3A (2 square metres) found by Wong in August 2009 was larger than that of the water stain (40 cm x 40 cm) recorded by Lau in March 2008, water seepage still existed in the period between the two tests. Moreover, I have also taken account of the 2-square-metre water stain found by Wong in the test conducted in August 2009, the results of the moisture content tests on the ceiling as well as the Plaintiff’s subjective view of the water seepage when filing the action in July 2008. Therefore, I rule that the water seepage probably ceased shortly after the Defendants had purchased Flat 4A (i.e. 15^th March 2008). As to the cause of its cessation, I shall not examine it herein.

58.    In respect of the Defendants’ assertion that they were not aware of the complaints about nuisances arising from noise and water seepage until August 2008, the Plaintiff raised no objection to it. I also take the view that the water seepage had already ceased at the time.

59.    In Sedleigh-Denfield v O’ Callaghan [1940] AC 880 at 905, Lord Wright stated that:

“If the defendant did not create the nuisance, he must, if he is to be held responsible, have continued it, which I think means simply that he neglected to remedy it when he became or should have become aware of it.”

60.    In view of the fact that when the Defendants became aware of the water seepage, it had ceased already and only a water stain was left behind, they should not be held responsible for the nuisance arising from water seepage.”   

16.In the opinion of this Court, the Judge was in error in the assessment of the overall evidence of water seepage. As stated above, the objective evidence has proved that the water seepage still continued and deteriorated from 15^th March 2008 to at least 4^th August 2009. As the Plaintiff is not an expert, her evidence of the water seepage that she saw during and after the material times as well as her subjective judgement were not cogent enough for the Judge to conclude that the water seepage ceased on 15^th March 2008. Moreover, the Judge’s conclusion was contradictory to Mr. Wong’s evidence as an expert. Yet she did not explain why she was not satisfied with Mr. Wong’s evidence.

17.We find that from the time the Defendants purchased Flat 4A to at least 4^th August 2009, the water seepage on the ceiling of Flat 3A’s bedroom had still continued and the Defendants, being the owners of Flat 4A, shall be made liable for it. Therefore, we allow the Plaintiff’s appeal on the issue of water seepage.

Noise

18.The Plaintiff admits that in fact the noise that she complains about arose from the normal daily activities of the tenants of Flat 4A. She also states that sometimes the noise coming from Flat 4A was even audible between the Ground floor and the 6^th floor. In this connection, the Defendants dispute that the Plaintiff is unusually more sensitive to sounds than an ordinary person and that she has mistaken the sounds of daily activities in Flat 4A as a nuisance. 

19.Mr. Wong testified that he and his assistant had conducted sound tests in Flats 3A and 4A, including making an ordinary person’s walking pace as well as throwing coins and keys in Flat 4A. The noise recorded in Flat 3A was found to be 60-80 decibels whereas the noise of the road traffic outside the unit was found to be 60 decibels. In his opinion, the sounds heard in Flat 3A fell within a mild level and had not exceeded the general level, therefore it was acceptable; however, he pointed out that it could be a noise nuisance if a person was subject to sounds of the said decibel level persistently. As for the causes of the noise, he said that even adding water pipes inside the floor of Flat 4A would not cause any noise; on the contrary, the replaced polished tiles in Flat 4A were the main cause of the noise.

20.The Judge said,

“ According to Winfield & Jolowicz on Tort, 18^th Edition, Chapter 14-4 states that:

“In fact, the law repeatedly recognises that a person may use his own land so as to injure another without committing a nuisance. It is only if such use is unreasonable that it becomes unlawful.”   

Moreover, Chapter 14-9 of Winfield & Jolowicz on Tort states that in considering what is reasonable the law does not take account of unusual sensitivity in persons if that is the only reason why they complain.

“C. Abnormal Sensitivity

    In considering what is reasonable the law does not take account of abnormal sensitivity in either persons or property. If the only reason why a person complains of fumes is that he has an unusually sensitive nose or that he owns an exotic flower, he cannot expect any sympathy from the courts.”  

Therefore, even though the Plaintiff holds a subjective view that the noise has constituted a nuisance to her, it is no doubt different from Wong’s view which is based upon an ordinary person’s senses.

In my opinion, the Plaintiff has failed to adduce evidence to prove the complaint about the noise nuisance.”

21.To decide whether the noise nuisance is substantiated, we will certainly not take account of the Plaintiff’s subjective sense of sound. However, the Judge has omitted the point that even though the Plaintiff is really more sensitive to sound than an ordinary person, the sounds of daily activities in Flat 4A had never been a nuisance to her between 1996 and 2005, and it was not until the floor of Flat 4A had been replaced with ineffective soundproofing floor tiles, making it much easier for the sounds of daily activities in Flat 4A to be transmitted to Flat 3A that she found such sounds a nuisance. In this connection, the sounds of daily activities in Flat 4A became a nuisance to the Plaintiff not purely because of her unusual sensitivity to sound, but also because of the ineffective soundproofing floor tiles in Flat 4A. Moreover, since the Defendants purchased Flat 4A on 15^th March 2008, so far 5 years have passed and there have been tenants occupying Flat 4A during this period of time. So long as the tenants have normal daily routines, they would persistently produce sounds reaching 60-80 decibels. Leaving aside the consideration of the Plaintiff’s unusual sensitivity to sound, according to Mr Wong’s opinion as an expert, even subjecting an ordinary person to such a situation for a long time is sufficient to constitute a nuisance. 

22.In the opinion of this Court, the Judge’s ruling was erroneous. Therefore, we allow the Plaintiff’s appeal on the noise issue.

Remedy

23.We set aside the order made by the Judge. As to the remedy available to the Plaintiff, our judgment is as follows:

24.In relation to the water seepage problem, Mr. Wong has suggested that the floor slabs in the additional kitchen and toilet in Flat 4A be broken up in order to check whether there are any pipes being laid underneath the floor tiles; if so, such pipes have to be removed first and then the floor slabs of those places be re-waterproofed and re-laid with floor tiles. Finally suitable pipes should be re-laid by way of re-laying “visible pipes” on the walls. The Defendants have indicated in court that if we make an order, they will be willing to take such remedial measures to stop the water seepage. However, as both parties agree that the water seepage already ceased at the trial proper, we take the view that it is not necessary to compel the Defendants to take these or any measures to stop the water seepage.  

25.In relation to the noise nuisance, we make an order that the Defendants have to take all effective measures to stop the noise within 42 days from the date of this judgment.

26.The Defendants have to compensate the Plaintiff for the loss she has suffered due to the nuisances caused by water seepage and noise. However, we are of the view that it is not necessary to set down individual sums of damages for the nuisances caused by water seepage and noise respectively. A lump sum covering the damages for both nuisances will suffice. In assessing the amount of damages, we have considered the following factors:

(1)           The water seepage already ceased at the trial proper, so the damages should mainly focus on the nuisance caused by noise.   

(2)       The noise arose from ordinary daily activities only and has not devalued Flat 3A; therefore, the damages are mainly to compensate the Plaintiff for the discomfort, inconvenience and annoyance caused to her enjoyment of Flat 3A by the nuisance.

(3)       Up till now, the Plaintiff has suffered from the noise nuisance for as long as 5 years since the Defendants have purchased Flat 4A.

27.We have referred to the authorities[1] on damages for nuisance arising from water seepage or noise decided by courts of various levels in Hong Kong. These authorities are mostly about water seepage and relatively less about nuisance arising from noise. Among those authorities, the most helpful one is Lo Yu Chu v Kam Fu Lai Development Co Ltd [1994] 3 HKC 18 (involving nuisance caused by noise from air-conditioners) in which although the Court of Appeal has not set down the amount of damages, it has given valuable guidance on the principles of compensation. At page 30B-C, Godfrey JA stated 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” as decided by the English Court of Appeal in Bone v Seale [1975] 1 WLR 797.

28.In John So & Anr v Lau Hon Man & Ors, CACV110/1993 5/10/1993 (involving nuisance caused by water seepage) at para. 18, the Court of Appeal stated that “there is no scientific way of translating inconvenience and discomfort into a sum of money: it has to be a conventional sum.”

29.Having considered the above factors and principles, we are of the view that damages in the sum of HK$60,000 is reasonable and therefore order that the Defendants do pay the Plaintiff damages in the sum of HK$60,000.

30.Finally, the Defendants have to compensate the Plaintiff for the cost for repairing Flat 3A’s ceiling affected by the water seepage. According to Mr. Wong’s evidence, the cost was estimated to be HK$4,600 at the time of trial. Having taken account of inflation, we think that it should be increased to HK$5,000.

Costs  

31.The general rule is that costs should follow the event. We set aside the order for costs made by the Judge and order that the Defendants do pay the Plaintiff’s costs of the trial and the appeal, including the cost of the surveyor’s report; such costs be taxed if not agreed.  

The Plaintiff, Ng Yuen Han, in person, present.

The Defendants, Lam Fei Fui and Tai Chuen Chun, in person, present.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law

[1] Lo Yu Chu v Kam Fu Lai Development Co Ltd [1994] 3 HKC 18; John So & Anr v Lau Hon Man & Ors, CACV110/1993 5/10/1993; Well Force Co Ltd v Boomway (Hong Kong) Ltd, HCA4480/1994, 7/7/1998; Hui Yuen Fong v Mok Mo Yin, DCCJ21492/2001, 4/4/2003.