Ho See Jui (trading as Xuanhua Art Gallery) v Liquid Advertising Pte Ltd and another

• Jurisdiction: Singapore
• Judge: Chew Yi-Ling Elaine AR
• Judgment Date: 08 August 2012
• Neutral Citation: [2012] SGHCR 11
• Court: High Court (Singapore)
• Docket Number: Suit 959 of 2009 (NA 26 of 2012)
• Published date: 21 May 2013
• Year: 2012
• Hearing Date: 22 June 2012,26 June 2012,25 June 2012,03 August 2012,24 June 2012,18 June 2012,06 August 2012,21 May 2012,19 June 2012,28 June 2012,27 June 2012,22 May 2012,21 June 2012,23 June 2012,20 June 2012
• Plaintiff Counsel: Kelvin Poon Kin Mun, Kue Tit Yin Melissa and Chong Kah Kheng (Rajah & Tann LLP)
• Defendant Counsel: Audrey Chiang Ju Hua, Calvin Lim Yew Kuan, Choo Zhengxi (Rodyk & Davidson LLP),Adam Muneer Yusoff Maniam (Drew & Napier LLC)
• Subject Matter: Damages,Assessment
• Citation: [2012] SGHCR 11

AR Chew Yi-Ling, Elaine:

The plaintiff’s claim in this action is for damages suffered as a result of ingress of water into his premises.

Background

At the material time, the plaintiff was the sole proprietor of an art gallery (“the gallery”), which sold Chinese ink paintings (“ink paintings”), located on the ground floor of a two-storey URA conservation shophouse. The first defendant was the tenant and occupier of the unit directly above the gallery. The second defendant had been hired by the first defendant to install and maintain a water dispensing unit in the first defendant’s office.

In the evening of 24 September 2008, a water inlet hose that carried water to the water dispensing unit ruptured. Water seeped through the flooring of the first defendant’s unit and into the plaintiff’s gallery. This was not discovered until the plaintiff arrived at the gallery on the morning of 25 September 2008.

Upon inspection, the plaintiff realised that the floor and some ink paintings hanging on the gallery wall were wet. Further inspection revealed that water had soaked into a custom-made paintings cabinet (“the cabinet”) where most of the ink paintings that were not on display were kept stacked one on top of another. The cabinet had five drawers in total. The top four drawers were completely filled with water on the morning of 25 September 2008. The fifth drawer was partially filled.

Having traced the source of water to the unit above, the plaintiff called the first defendant’s office to inform its employees of the occurrence. After the call, some of the first defendant’s employees arrived at the gallery and helped to drain the water from the drawers of the cabinet and to dry the floor. They did so by using cups to scoop out water from the drawers, and also by using towels to soak up the liquid.

After as much water as possible had been scooped out, the drawers were removed from the cabinet and placed at an angle against a wall to drain excess moisture. It was at this point that the plaintiff tried to separate the ink paintings that had been kept in top four drawers of the cabinet only to find they were stuck together and could not be easily separated. The plaintiff subsequently called two persons whom he knew were in the business of restoring paintings for assistance. One had a prior engagement and was unable to assist. The other, Ho Bee Tiam (“Ho”), also had other matters to attend to but agreed to come down to the art gallery later in the day.

As mentioned earlier, the bottommost drawer of the cabinet was only partially soaked in water. The ink paintings stored there were not completely wet. Consequently, the plaintiff was able to separate the ink paintings stored in the bottommost drawer by carefully lifting each sheet using the dry portions. After separation, due to space constraints within the gallery, the plaintiff could not spread the ink paintings flat to dry but instead hung them on top of other unaffected framed paintings on the wall to dry.

At about 3.00pm that day, Ho arrived at the gallery. He realised that the damage done was more serious than he had anticipated. He left the gallery to obtain materials for carrying out salvage works. Ho returned to the gallery at about 4.00pm with a brush, a stack of rice paper and a rod, and commenced the process of separating the wet ink paintings that were stuck together.

To separate the ink paintings that were stuck together, Ho would first place a dry piece of rice paper over the topmost sheet. He then used a brush to smoothen the rice paper on top of the ink painting to soak up excess water. Thereafter he placed a rod midway across the ink painting covered with the rice paper, carefully lifted the ink painting and draped it over the rod. He would then gently lift the rod with the rice paper covered ink painting draped over it, lay the ink painting flat on top of the cabinet and place another sheet of dry rice paper over the uncovered side of the wet painting to soak up more excess water. A similar process was repeated with each ink painting in the stack. The only variation related to the top sheet in each stack. As the ink painting at the top of each stack tended to be driest, no rice paper would be applied to its face before Ho used the rod to separate it.

Ho eventually contacted two more persons who were in the same line as him as there were too many wet ink paintings to salvage. After these two persons arrived at the gallery, the three worked together to separate the ink paintings in the manner described above. The separation process was only completed about 11.30pm the same day.

Ho advised the plaintiff to use a hair dryer to dry each of the separated ink paintings. Over the next three days after the incident, the plaintiff, his family members and friends, and the first defendant’s employees used hair dryers to dry the paintings in gallery. The protective sheets of rice paper would be removed from each ink painting before it was dried using the hair dryers held at a distance away.

Between 25 September 2008 and 8 October 2008, the gallery remained closed while the plaintiff dealt with the aftermath of the incident. 314 paintings had been affected by the water (“the Affected Paintings”). Most of these were works that the plaintiff had bought to sell in the gallery. Some comprised part of the plaintiff’s private collection. The plaintiff subsequently restored 60 of the 314 Affected Paintings (“the Restored Paintings”) and attempted to market them online as well as in his gallery. He did not manage to sell any of the Restored Paintings and eventually stopped trying at the end of 2010. No further attempt was made at restoration as the plaintiff believed the Affected Paintings would not be saleable even after restoration given that no one had expressed interest in the Restored Paintings.

Subsequent to the incident, the plaintiff brought the present claim in tort against the first and second defendant. At the trial on liability, the issue of causation was not contested (see Ho See Jui Trading as Xuanhua Art Gallery v Liquid Advertising Pte Ltd and another [2011] SGHC 108 (“Ho See Jui”) at [21]). The judge held that the first defendant and the second defendant were liable in tort for the damage caused by the water seepage in the proportion 30:70 (Ho See Jui at [81]). The judge ordered the plaintiff’s claim for damages to be assessed.

On 14 May 2012, the plaintiff duly took out a Notice of Appointment for Assessment of Damages. The assessment hearings were conducted over two tranches from 21 May 2012 to 22 May 2012 and from 18 June 2012 to 28 June 2012. Closing and reply submissions were exchanged. On 3 August 2012, parties made submissions on costs. On 6 August 2012, parties were recalled for clarification. A total of four witnesses were called to the stand. The plaintiff and Ho were the witnesses of fact. The plaintiff further called an expert witness, Chan Wai Kong Kelvin (“Chan”). The defendants’ sole witness was their jointly appointed expert, Lim Sew Yong (“Lim”).

The plaintiff’s case

The plaintiff’s claim for damages comprised the following heads: (a) losses incurred as a result of the damage and/or destruction of the [Affected Paintings]. (b) S$493.80, being the cost incurred between 25 September 2008 and 22 November 2008 in engaging specialists and procuring the necessary materials to salvage the [Affected Paintings]; (c) S$2,730.00 being the cost of restoration of the [Affected Paintings] incurred between 4 October 2008 and 31 July 2010; (d) S$2,328.90 being the rent and utilities incurred by the Plaintiff in closing his business for approximately two weeks from 25 September 2008 for the inspection, separation and drying of the soaked [Affected Paintings]; (e) S$1,600.00, being the cost of the cabinet which contained the [Affected Paintings] that was irreparably damaged by the water. In respect of item (a), the plaintiff sought to persuade me that I should accept Chan’s assessment that the market value of the works in their undamaged state in September was S$2,266,300.00, but post-incident, there was only a salvage value of $264,915.00. He submitted that he had proven his losses and he had taken reasonable steps to mitigate those losses. In any event, the defendants were not entitled to raise at the assessment stage the argument that they had not caused the plaintiff’s loss. In respect of items (b) – (e), the plaintiff submitted that the invoices supporting those claims were not seriously challenged by either defendant and ought to be allowed.

The first defendant’s case

The first defendant did not challenge items (b), (c) and (e). In respect of (a), the first defendant submitted that as the plaintiff had failed to mitigate his losses, he should only be entitled to the cost of repairs to the Affected Paintings and the diminution in value of the Restored Paintings. The first defendant also submitted that in any event, the plaintiff had not proven that the alleged damage to the Affected Paintings had been caused by the water seepage. Furthermore, the alleged damage was too remote. Even if the alleged damage had been proven, Lim’s evidence that the loss to the Affected Paintings was between $253,445 to $357,720 was to be preferred over Chan’s. In respect of (d), the first defendant submitted that the item should not be allowed as these were the sums the plaintiff would have incurred in any event given his existing lease agreement with his landlord.

The second defendant’s case

The second defendant also did not challenge items (b), (c) and (e). In respect of (a), it submitted that no damages should be allowed for three reasons. First, the plaintiff had failed to prove its loss. Second, the losses claimed in relation to the tearing and smudging of the Affected Paintings were too remote. Third, the plaintiff had failed to mitigate his losses. Its alternative submission was that even...