Wong Kwok Chiang v. Longo Construction Ltd and Another

CACV000168/1987

BETWEEN

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Coram: Silke, V.-P., Fuad, V.-P. and Macdougall J.

Dates of hearing: 10th, 11th and 12th May 1988

Date of handing down judgment: 24th May 1988

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J U D G M E N T

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Silke, V.-P.:

1. Having had the opportunity of reading it in draft, I agree with the judgment of my Lord Fuad, V.-P. dismissing the Plaintiffs' appeal.

2. The grounds set out in the Notice of Appeal, and I had thought Ground 5 in particular of the grounds remaining to be so imprecise and unhelpful as to need clarification, amount to little more than that the trial judge should have believed the Plaintiffs' witnesses and not the Defendants'.

3. In his careful detailed and reasoned consideration of the evidence before him, Judge Sharwood has not been  shown to have in any way misdirected himself.

4. I also agree with that which my Lord will say in respect of the cross-appeal.

5. The evidence led in respect of items (i) and (ii) did not shine with clarity. It is understandable, in the circumstances, that the trial judge misunderstood it and that he arrived at a quantum which was not, at the end of the day, justified by that evidence.

6. I too would not disturb, for the reasons given, item (iv) - the food award or item (v) - the cost of security guards it is clearly better for the family to vacate the premises while the necessary repairs are being carried out - if only to hasten the speed of their execution, They would not be required to remove. all the household items and their personal belongings. That they would have to stay somewhere was not contested. Considering the evidence, such as it was, as to the availability of three flats for a six weep period, I have no doubt that a stay in a modest hotel is the best answer. While there they must eat. Again the evidence on who provides for the larger portion of the inhabitants is scant. I am not however prepared to say that the trial judge, who had the live feel of the case was in error in making the award he did.

7. While the house is vacant; the Plaintiffs are entitled to have it secured. Workmen will be moving in and out during the day and the presence of a security guard during that time is advisable. At night it will be totally, empty. Again the presence of a security guard is, in my view, a necessity.

8. For an award under item (vi) - general damages for annoyance, inconvenience and discomfort there must be evidence. The only reference to this by Mr. Wong, apart of course from his evidence as to actual damage, was based on matters for which the trial judge found the Defendants not liable. it goes without saying that the erection of a large building in close proximity to this house in which the Plaintiffs live and which damaged that house must be a cause of  "annoyance,inconvenience and discomfort". For it to sound in damages, that cause must go beyond that which is permissable in one man's developing of his own property, which he has a legitimate right to do. I am sympathetic, as I think was the judge to the plight of neighbours faced with a development like this next door to them. The evidence here does not go sufficiently far as to take all that which went on outside that which is permissable. I have not in coming to this conclusion; overlooked the generality of the evidence in the case nor the defective shoring which caused a temporary stoppage in the development work.

9. I too would allow the cross-appeal to the extant indicated and find the damages to have been $227,600.

10. At the conclusion of the hearing, I stated that we would hand down this judgment to avoid the further attendance of counsel and to permit them to consider it before going on to matters outstanding.  We shall make no order at this time as to the costs of the appeal dealing with that and with the Plaintiffs' appeal against the costs order of Judge Sharwood on a date to be fixed in consultation with counsel.

Fuad, V.-P.;

11. After a hearing which lasted 20 days during October and November 1987, by a reserved judgment dated 9th December 1987 His Honour Judge Sharwood (sitting as a Deputy Judge of the High Court) awarded the Plaintiffs damages against the Defendants for the physical damage they caused to the Plaintiffs house by their construction work on the site next door, as well as damage in respect of the Annoyance, inconvenience and discomfort suffered by the Plaintiffs. He also awarded various sums for consequential expenses.

12. The Plaintiffs are not satisfied with the quantum of the award made in their favour and now appeal to his Court.   The Defendants say that the award was coo high and cross-appeal, By consent of the parties we stood over another appeal (No. 168 of 1987) involving the same parties which was consolidated with the present appeal brought by the Plaintiffs challenging the judge's order for costs in the action, until the determination of the main appeal.

13. The Plaintiffs are four brothers who are the registered owners and tenants in common of a large house at No. 73D Waterloo Road, Kowloon which was built over 30 years ago. Mr. Wong Kwok Gee brought the action on behalf of himself and his three brothers who furnished him with a power of attorney for that purpose. He was the only brother to give evidence.

14. The 1st Defendant is a construction company who have undertaken foundation works on the adjoining site, No, 73C Waterloo Road, since 1983. The 2nd Defendant is the registered owner of that site.

15. By their Re-amended Statement of Claim, the Plaintiffs claimed that it would take $616,000 to put right the damage done to their house by the Defendants. The estimated costs are itemised. They averred that they would need to vacate the house for 6 months and claimed hotel expenses amounting to $360,280 and $108,000 for the extra cost of food in, an hotel for that period. They also claimed $51,040 being the cost of security guards to watch over their house while they were away. They further claimed $270,000 being the drop in value of their house because it could not be restored perfectly to its original state. This adds up to $1,414,120.

16. We are not now concerned with an alternative way in which the Plaintiffs put their loss which involved a claim for $1,334,000. They also claimed various injunctions and declarations. We are not concerned with these either.

17. The learned judge tried the action with anxious care as can be seen for the meticulous record he kept and from his fully reasoned judgment which ran to 83 pages of typescript. For the reasons that he gave, he concluded that $270,100 should be the total award in damages, made up as follows:

(a) $145,040 being the cost of repairing the damage he found had been caused by the Defendants to the Plaintiffs' house;

(b) $75,600 for hotel accommodation;

(c) $16,500 for the extra cost of hotel food;

(d) $12,960 for employing security guards;

(e) $20,000 general damages for annoyance, inconvenience and discomfort.

If my calculations are right, in respect of pecuniary loss and damage, the Plaintiffs recovered $1,164,020 less than they claimed.

18. In making his award, the judge held that the Plaintiffs had not established that they were entitled to any recompense in respect of the following because he was not satisfied that the Defendants had caused the damage that would have made the relevant repair work necessary:

(a) the tilting of the house towards No. 73C;

(b) cracks at the junction of the infill walls with columns and diagonal cracks along the east west walls;

(c) distortion of door frames and windows;

(d) interference with the common foundations of the house and 73C;

(e) contravention of certain building regulations;

(f) withdrawing support from the house and "dewatering";

(g) inadequate shoring;

(h) casting a new reinforced concrete beam at the-central west wall,

(i) repairing first floor balcony;

(j) repairs to underground-drains;

(k) stabilizing the foundations.

19. I think it is here desirable to read the grounds set out in the Plaintiffs' Notice of Appeal (Grounds l and 2 were abandoned):

"3. The Learned Judge erred in preferring the evidence of the Defence expert witnesses in particular, one Mr. Eddie Lee, whose evidence was not based on actual experience of the events at the material times but instead put forward ex-post-facto his own hypothesis of the causes of the damage which the Plaintiffs sought to prove.

4. The Learned Judge erred in failing to attach weight to the evidence of the Plaintiffs' witnesses wherever there was conflict in spite of the fact that two of these, Mr. Wong Kwok Gee and Mr. H.W. Leung had  had first hand experience of material events, as and when they occured throught all the material times, and in addition made no adverse comment on the veracity of those witnesses.

5. The Learned Judge failed to attach sufficient weight or at all to those parts of the evidence from both the Plaintiffs' and the Defendants' witnesses, which tended to support the Plaintiffs' case.

6. The Learned Judge erred in finding, on the whole of the evidence that the building, 73D Waterloo Road had not subsided.

7. The Learned Judge failed to attach sufficient weight or at all to the fact that the Defendants were twice served with a cease-work order under Section 23 of the Buildings Ordinance, Cap.123 of the Laws of Hong Kong and the implications thereof.

8. The Learned Judge erred in his assessment of quantum of damages by not attaching sufficient weight to the whole of the evidence as to damage."

20. I do not want to say too much about this Notice of Appeal for my Lord Silke, V.-P. commented upon it when he issued directions on 29th April 1987 after the Defendants had complained about its inadequacy and had asked for particulars. It is plainly unsatisfactory and does not give the Defendants sufficient notice of the grounds upon which the judge's findings are impugned. A document filed by the Plaintiffs headed "Statment of Notice of Appellants' Case" is scarcely more helpful. No doubt the Plaintiffs difficulties were the fact that there was a very late change of solicitors.

21. Mr. Allan who argued the appeal before us had a formidable task since he came very late to the case. The gravamen of his main submission was, as I understood it, that the judge should have accepted the Plaintiffs' expert evidence and not that of the Defendants. Before I say any more about this, I desire to review what the judge said about his impressions of the expert witnesses called on each side. He said that he was much more impressed with Mr. Lee and Mr. Samarajeewa (the Defendants' experts) than he was with Mr. Leung and Mr. Keily (the Plaintiffs' experts') and that whenever conflict arose, he invariably preferred their evidence.

About Mr. Leung, the judge said:

" Mr Leung despite a long and varied career in his profession, seemed to me to be fixed in his ideas, and to be unable or unwilling to give reasons for his opinions and theories.

He was constantly forecasting dire consequences, and predicting catastrophe, without examining such facts as were available to him.   The Building Authority (or P.W.D. as it has been referred to) were always more than willing to send out its people to investigate and inspect the site and to properly ensure that things which should have been done, were in fact being done. On numerous occasions, the P.W.D. declared that the site was safe and the building stable, yet Mr Leung kept publishing his forecasts of doom and destruction. He seemed to be unmoved by the check point readings by the piezometer readings and by the continuing reports of stability do not criticise him for that. There is nothing wrong with being zealous and for having independent views and for not necessarily accepting the word of the established authority!   On the contrary, those are qualities which are often impressive. But it is one thing to have opinions, and quite another not to be able to give good reasons for having them.

Mr. Leung did not appear to me to be able to explain or justify his opinions."

The judge added:

"Perhaps the most important aspect of the plaintiffs case was the allegation that 73D had tilted towards 73C. Mr. Leung did not explain how he arrived at that conclusion and he ignored the check point readings, the piezometer readings, and other relevant data. If he was not happy with the positioning of the check points he made no effort to position others at places he thought suitable. Mr. Samarajeewa [one of the Defendants experts] thought that the check points were properly placed and Mr. Leung appeared to suggest in his second report that some of the check points along the party wall were in the right position."

22. In referring to the other expert called by the Plaintiffs, Mr. Keily the judge noted that he was a surveyor who had given no evidence of any experience in building failure. The judge said that Mr. Keily had not given him the impression that he had analysed or carefully thought things out.

23. Regarding Mr. Samarajeewa and Mr. Lee called by the Defendants, the judge had this to say:

" On the other hand, Mr. Samarajeewa, an employee of the P.W.D. was completely independent, notwithstanding that he was called by the defendants. He was the only structural engineer to give evidence.

He inspected 73D at the most important time, i.e. July 1984, when the plaintiffs alleged that most of the trouble occurred, when the major settlement occurred. Very little has happened at 73D since that time. I was extremely impressed with this witness. He appeared thorough, knowledgable and fair. He relied on the available information, on his experience, on his inspections and on his observations. He gave explanations.  His evidence was sensible, persuasive, even compelling.

Mr. Lee was also a particularly impressive witness.  He put enormous effort into his work. He considered every crack in minute detail, and assisted the court greatly in understanding many unfamiliar things. He had obviously considered the matter very deeply. I thought him very professional, and also very fair. He had substantial experience in building failure. He was an Authorized Person. The facts which arose subsequent to his report; appeared to me to give support to his original opinions, and to be consistent therewith."

24. Apart from these general observations, during the course of his judgment the judge gave clear and cogent reasons why, on any given issue, he preferred the expert evidence led by the Defendants to that led by the Plaintiffs.

25. Mr. Allan submitted that Mr. Leung's evidence should have been accepted because he was the witness most involved in the problems that the Plaintiffs encountered, had provided five reports about the alleged damage caused to 73D Waterloo Road; and had monitored the work for several years. This no doubt was an advantage but the judge, in rejecting Mr. Leung's evidence on the main issues must have had all this very much in mind because he mentions it at page 27 of the transcript of his judgment. It must also be remarked that Mr. Samarajeewa, who supported Mr. Lee's opinions on such important matters as the alleged tilting of 73D, was intimately involved in the controversy from early on.

26. Mr. Allan was not able to point to any misdirection or non-direction in the judge's judgment. Nor, despite what is said in the Notice of Appeal; was he able to point to evidence which tended to support the Plaintiffs' case, other than evidence which the judge rejected and, it seems to me, was entitled to reject. Nor was anything in the evidence given on behalf of the Defendants which, properly evaluated, supported the Plaintiffs case.

27. I have read and re-read the transcript and find myself quite unable to conclude that the judge's treatment and assessment of the evidence was in any way faulty. Of course, he had the advantage of seeing and hearing the witnesses during a lengthy trial, but even without that benefit I think that it can safely be said that on the transcript alone the judge's findings appear unassailable.

28. I am bound to say that the appeal was, in my judgment, quite hopeless. With every respect to Mr. Allan who held a difficult brief, there was nothing in any of the grounds raised in the Notice of Appeal or in the submissions he advanced in support of them.

29. I would dismiss the Plaintiffs' appeal.

30. I now turn to the Defendants' cross-appeal by which they seek to reduce the award of damages made in the Plaintiffs' favour. The cross-appeal assumes more than usual importance in this case in view of the fact that the Defendants paid $250,000 into Court and if they succeed in their appeal to the extent that they are ultimately found "liable to pay damages of an amount not greater than that sum, they will, subject to the Court's overall discretion, be entitled to have the costs incurred after the date of payment in. The Defendants challenge six items of damage,

31. Item (i) : The judge awarded $12,500 in respect of "repair to water penetration at west retaining wall of ground floor shop (garage) including, internal tanking and finishing." In dealing with this item, the judge noted that Mr. Lee's opinion had been that the crack on the retaining wall of the garage was an old one and had nothing to do with 73C, but he had felt that $10,000 should be awarded because some of the gap between the garage and the open steps at the front was due to the work at 73C. Mr. Lee had inspected this area in November 1986, and from the repairs he had seen, and from Mr, Leung's reports, he had reached the conclusion that the water penetration would have aggravated, but not caused, this gap. On the basis that trite repairs would cost $20,000, Mr. Lee had considered $10,000 or 508 to be a reasonable contribution.

32. The judge went on to say that he accepted Mr. Lee's. evidence that the gap was not caused by 73C, but aggravated by it, and thought that 50% was a reasonable contribution. He referred to an earlier estimate by a firm of surveyors, Vigers - $30,000 - and to Mr. Leung's estimate of $25,000. Using Mr. Leung's estimate as a starting point, since it lay exactly half-way between that of Vigers and Mr. Lee, he would allow 50% of $25,000, i.e. $12,500, In doing so, he had noted that the Vigers estimate included "internal tanking and betterment", which Mr. Lee had said was not the replacement of anything, but merely an improvement on the previous system.

33. Mr. Mok, on behalf of the Defendants submits that the evidence showed that the Vigers estimate ($30,000) and Mr. Leung's estimate ($25,000) had each included the repair of damage to the retaining wall, and points out that the judge had held that the damp penetration to the retaining wall, causing it to crack, had not been caused by the Plaintiffs' building activities. He had accepted Mr. Lee's opinion that these cracks were due to ageing and weakening of the structure due to long standing water penetration. In my judgment Mr. Mok is right When he contends that Mr. Lee's estimate was the only one confined to damage other than the cracks to the retaining wall. Having accepted Mr. Lee's evidence, although the sum involved is very little, with respect to the judge, I think he erred in using the Vigers and Leung figures as a starting point and I would reduce the damages awarded in respect of this item from $12,500 to $10,000.

34. In so concluding, in my judgment it is by no means so clear from the evidence; as Mr. Mok suggests it is, that this item was already covered by an award of $50,000 in respect of a group of other items so as to warrant interference.

35. Item (ii) : The judge awarded $67,000 for "repair to all the internal cracking to wall, ceiling and floors, including stitch work of defective brickwork, finishing and redecorating adjacent areas." Mr. Loo had said that in his opinion $42,000 would be the right, amount to compensate the Plaintiffs for this item: $25,000 for cracks in the west party wall, $5,000 for an old pair of cracks and_. $12,000 for repairs to the kitchen.

36. The judge accepted Mr. Lee's estimate for the last two items of damage, but in relation to the $25,000 estimate for repairs to the west party wall, he said:

" But in cross-examination about his estiamte of $25,000 for the west party wall cracks, Mr. Lee appeared, to say that his estimate was now $40,000. When it was put to him that his original estimate was $25,000 he said: 'Yes. But that didn't include most of the stitching because at that time I was not benefited by another site inspection. I was not quite certain what Mr. Lee meant by this, but. I was satisfied that he was changing his estimate to $40,000, from $25,000.

Generally, I thought Mr, Lee was being a little conservative in his estimates here, and having regard to the fact that 12 men would be required to do the work if an all out attack was to be mounted simultaneously on all three floors, I considered that $50,000 was a fair and proper allowance for this item, namely 13A(4), of the Re-Amended Statement of Claim."

37. I am not greatly surprised that the learned judge was "not quite certain" about what Mr. Lee meant when, during his evidence, he increased his earlier estimate of $25,000 to $40,000. But I am how fully persuaded that a true evaluation of his evidence at pages 312, 349 and 351 of appeal bundle (I) makes it absolutely a clear that Mr. Lee enhanced his estimate because he saw "bellying" on the inside of the wall which had not been present at the time he made his visit upon which his written report had been based. "Bellying" is difficult to describe but it is the effect upon an internal wall caused by pressure to the outside of the wall which causes a sort of inward bubble to appear.

38. The confusion, for such it was in my opinion, was due to the fact that it was only during the closing addresses that it was conceded by counsel then acting for the Plaintiffs that he would not seek to lay the, "bellying" at the door of the Defendants. Mr. Lee's revised estimate undoubtedly was to account for the extra work involved in the repairs and redecoration to the wall due to the "bellying". I have no doubt that Mr. Lee would have adhered to his original estimate if he did not have to have regard to the "bellying".

39. In my judgment the $50,000 awarded in respect of this item cannot stand, but in view of the learned judge's comments about the conservative nature of Mr. Lee's estimate, I think the proper sum for this item would be $30,000.

40. Item (iii) : The judge awarded the Plaintiffs $75,600 for 6 weeks hotel accommodation. He considered that the remedial work could be done more quickly and conveniently if the occupants left the premises. He also said that he was satisfied that the occupants could not be expected to put up with the work needed to be done to the inside of the house, particularly to the west wall. The Defendants do not challenge this conclusion or the duration of the vacation of the house.

41. What Mr. Mok contends on their behalf is that short-term lets of, say, three flats to accommodate all the family could be obtained at less cost to the Defendants. The learned judge dealt fully with this aspect of the case I am not persuaded that he erred. I would not disturb the award of $75,000 for this item.

42. Item (iv) : The judge awarded $16,500 for the extra cost of food at an hotel. There was evidence that, 12 people lived in 73D, but that there were effectively two households. Mr. Wong Kwok Gee said that his household consisted of himself, his son, a cousin and an amah. His old father headed the other household of eight persons which include his step-mother, two of his brothers (two of the Plaintiffs) one of his sisters-in-law; two teenagers and an amah.

43. Mr. Wong first told the Court that his father (who is not one of the Plaintiffs) was responsible for paying the expenses of his household. Later he said that while his step-mother was the person who bought their food, he was not sure whether his father or his younger brother, who was a wage-earner, paid for it.

44. Mr. Mok submits that it was for the Plaintiffs to prove their case and if the father paid the expenses of that household; since he was not a party to the action, the judge had no proper basis upon which to award them extra cost of food.

45. There is undoubtedly something in what Mr. Mok contends; and the evidence could have been clearer, but since neither the father nor the step-mother had any income, it is not unreasonable to assume that it was highly likely that the younger brother who was earning, and who was a plaintiff, paid or contributed to the cost of food in that household. A very small sum is involved, and I am not prepared to hold that the judge was wrong in awarding $16,500 under this head.

46. Item (v) : The judge awarded $12,960 to the Plaintiffs to pay for security guards during the time the house would be vacated for the necessary repairs. Mr. Mok submits that the judge should not have awarded any sum in respect of this item for no evidence had been led about the need for security guards -  the only evidence being about what they would cost.

47. In sharp contrast to the way the learned judge dealt with the other claims in his long and carefully formulated judgment, he says nothing about this except to record what the cost of security guards would be for a period of six weeks as opposed to the amount claimed for six months. I think that the reason is clear, he must have felt that the need for security guards was self-evident. In my judgment, once it is acknowledged that the occupants of the house would have to move out for G weeks; then (although it would have been better if some evidence had been called about this need) it was not unreasonable to hold that security guards would be required. After all the furniture and effects of two households would remain in No, 73D while the repair and redecoration work was carried out, and even during the time that workmen were engaged on the job, a prudent householder might well think it advisable to have the house watched. I would not disturb the award under this item.

48. Item (vi) : The judge awarded the Plaintiffs general damages of $20,000 for "annoyance, inconvenience and discomfort". The Defendants say that there was insufficient evidence to justify this award.

49. This is what Mr. Wong Kwok Gee said about this aspect of his claim; I will read the relevant part of his exchange with his counsel in examination-in-chief:

"Q. Have you carried out any redecoration since problems began?

A. No.

Q. Why not?

A. Because I do not intend to do anything before completion of litigation and I don't want to destroy the physical evidence in the house.

Q. How have problems with house affected your life?

A. It causes great inconvenience.

Q. How so?

A. There is a lot of damage in the house and I just cannot carry out any renovation work and I can't live in the house comfortably. When it rains, there is a lot of accumulation of water on roof and on balconies and water brings mosquitos. It is obvious that house is tilted and so psychologically one can't live there happily. My family feels what I feel."

50. After noting what Mr. Wong had said, this is the relevant part of the judge's judgment:

" Looking at all the facts and circumstances, I was satisfied on the balance of probabilities that the plaintiffs had, over a period of years; suffered annoyance, discomfort, nuisance and inconvenience. I could not see why an award should not be made in respect of non-pecuniary loss; despite the fact that it was, to say the least; inadequately pleaded in the Re-Amended Statement of Claim. Nevertheless, I was prepared to dimly discern in paragraph 13 a claim for non-pecuniary damages.

There are a number of authorities dealing with damages awarded to persons following disturbance to them in the occupation of their homes. Counsel did not address me on these cases, and it was difficult to find satisfactory guidelines. Doing the best I could, I awarded $20,000 to the plaintiffs for the annoyance, inconvenience and discomfort they have had to endure over the past several years as a result of the damge to 73D."

51. Mr. Mok, on behalf of the Defendants makes the entirely valid points that so far as Mr. Wong's evidence alone is concerned (and, as has been noted, none of the other Plaintiffs or other occupants of the house gave evidence) it was by his own choice that he did not carry out redecoration earlier. I mention here that there was no suggestion that the Wong family could not afford it. Moreover, the accumulation of water on the roof and the balconies which attracted mosquitos was not caused by any damage, as the judge found, that could be attributed to the Defendants' fault. Nor was the tilting that so troubled Mr. Wong caused by the Defendants' operations.

52. Mr. Mok also complains that the judge did not appear to have adequately considered whether the annoyance, discomfort etc. that may have been suffered was such as to be over the permissable limit between neighbours in Hong Kong where redevelopment is in progress. In addition, the judge had expressly absolved the Plaintiffs from any negligence and there was no finding that the Plaintiffs had acted in any way unreasonably.

53. Just as no authorities were cited to the judge, none were referred to us. It is, of course, trite law that even where there is no physical damge to property, nuisance which is established may cause annoyance, discomfort and inconvenience to the occupants of property. Recovery by an aggrieved Plaintiff is based on the normal measure of damages assessed on general principles (see e.g. Bone v. Seale [1975] 1 W.L.R. 797. per Scarman L.J. at p.804F. This is the "nuisance of the third kind" so described and dealt with in CLERK AND LINDSELL ON TORTS (1st Edition) paras.23-03 to 23-10.

54. I agree with Mr. Allan that when making this award the judge had in mind all the evidence he had heard in this long case and not just the testimony given by Mr. Wong about his unhappiness and inconvenience it would be wrong not to take all the evidence into account.

55. I do not doubt that general damages under this head can be recovered if it is established that annoyance and inconvenience etc. was caused, and was foreseeable by those creating the nuisance. In other words I do not see why in appropriate cases general damages should not be recovered even where the primary nuisance is of "the second kind" (causing physical damage to property) discussed in CLERK AND LINDSELL in para. 23-03.

56. But was this an appropriate case? The judge clearly thought so. However, with very great respect to him, I feel bound to take a different view. I think it is very important to have regard to the fact that Mr. Wong and his brothers were found to have grossly exaggerated their claim by hundreds of thousands of dollars and that the matters that seemed to cause Mr. Wong the most distress were found not to be the fault of the Defendants. Theirs was an old house by Hong Kong standards, and by no means in immaculate condition. Much repair work and re-decorating, on the facts found by the judge, and necessitated by other causes, was left undone. In the event the judge concluded that $145,040 was all that was needed to repair and redecorate the house in respect of the damage for which the Plaintiffs were responsible - a comparatively modest sum when one bears in mind the size of the house. The Defendants did not act negligently or in arrogant disregard of the Plaintiffs' rights: No doubt Mr. Wong's beliefs were genuine, but had he appreciated that much of which he complained was not the responsibility of the Plaintiffs he is unlikely to have suffered the annoyance and distress he says he had to bear.

57. In my judgment the award of pecuniary damages he is to receive adequately compensates him and his brothers for the nuisance caused by the Defendants and I have concluded that the general damages award of $20,000 under this item cannot stand.

58. I would therefore allow the cross-appeal to the extent indicated. This would result in the damages awarded to the Plaintiffs being r educed from $270,100 to $227,600.

Macdougall, J.:

59. I agree with my brethren for the reasons they have given that the appellants' appeal should be dismissed. I also agree that the respondents' cross-appeal should be allowed in respect of the items to which my Lords have referred Regrettably, however, I find myself unable to agree with them concerning the extent to which ground 2 of the cross-appeal should be allowed.

60. The following is the passage from the learned judge's judgment upon which this ground centered:

"     But in cross examination about his estimate of $25,000 for the west party wall cracks, Mr. Lee appeared to say that his estimate was now $40,000. When it was put to him that' his original estimate was $25,000, he said : 'Yes. But that didn't include most of the stitching because at that time I was not benefited by another site inspection'. I was not quite certain what. Mr. Lee meant by this but was satisfied that he was changing his estimate to $40,000, from $25,000.

Generally, I thought Mr. Lee was being a little conservative in his estimates here, and having regard to the fact that 12 men would be required to do the work if an all out attack was to be mounted simultaneously on all three floors, I considered that $50,000 was a fair and proper allowance for this item, namely 13A(4) of the Re-Amended Statement of Claim."

61. While I am satisfied that Mr. Lee did not amend his estimate from $25,000 to $40,000 as the judge had thought he had done, I am bound to say that I do not accept that $25,000 can properly be regarded as a conservative estimate of the cost of repairing the damage, excluding the bellying, to the western wall.

62. The appellants' own expert Mr. Kiely estimated that the cost of all the repairs to the western wall, including the bellying, was $40,000 and that, excluding the bellying, the cost would be $22,000. In the light of that evidence I am unable to find any justification for concluding that Mr. Lee's estimate, exceeding as it does that of Mr. Kiely by $5,000, is conservative.

63. The judge is to be complimented for his exhaustive, meticulous and closely reasoned judgment in a case which involved a mass of complex technical evidence. Indeed a major portion of the two days over which this appeal was argued was devoted to unravelling the confusing threads of evidence relating to this item of damages. Bearing in mind the mass of other evidence with which the judge had to concern himself, it does not come as a surprise that this misunderstanding arose. The confusion was undoubtedly compounded by the fact that, because the bellying was very much a live issue during the course of the trial, the distinction between the cost of repairing it and the cost associated with the other. repairs to the wall was not as clearly made as it might have been. But the distinction later assumed importance when, after the close of evidence, counsel for the appellants expressly abandoned the claim for the bellying. This is perhaps the explanation as to why the judge apparently failed to realise that after the overall estimates for the repairs to the wall were broken down into their component parts, Mr. Lee's estimate for the relevant allowable repairs was higher than that of Mr. Kiely.

64. I would therefore reduce the sum of $50,000 awarded by the judge for the repair of this item to $25,000. On all other matters I am in respectful agreement with my brethren.

Representation:

Mr. W.G. Allan (H.H. Lau & Co.) for the Appellants/Plaintiffs

Mr. Y.C. Mok (Wong, Hui & Co.) for the Respondents/Defendants