Ng Siok Poh (administratrix of the estate of Lim Lian Chiat, deceased) and another v Sim Lian-Koru Bena JV Pte Ltd
Jurisdiction | Singapore |
Judge | Kannan Ramesh J |
Judgment Date | 27 September 2017 |
Neutral Citation | [2017] SGHC 231 |
Plaintiff Counsel | Lai Swee Fung (Unilegal LLC) |
Docket Number | Suit No 248 of 2014 |
Date | 27 September 2017 |
Hearing Date | 30 June 2017,13 June 2016,17 April 2017,03 November 2015,26 February 2016,25 July 2017,05 November 2015,20 February 2017,04 April 2016,04 November 2015 |
Subject Matter | Tort,Damages,Measure of damages |
Year | 2017 |
Defendant Counsel | Mahendra Prasad Rai (Cooma & Rai) |
Court | High Court (Singapore) |
Citation | [2017] SGHC 231 |
Published date | 10 July 2018 |
This case was about the house that Mr Lim Lian Chiat (“Mr Lim”) built (“the Property”). The Property is located at No 30 Lorong K Telok Kurau. The present dispute raised interesting issues regarding damages for torts affecting land and interest on special damages for damage to property.
The plaintiffs sued the defendant in tort for causing damage to the Property. They obtained interlocutory judgment by consent with damages to be assessed. On 30 June 2017, I assessed the damages at $462,200.76 and delivered brief grounds of decision. On 25 July 2017, I decided not to award interest on the damages assessed and ordered the defendant to pay the plaintiffs’ costs fixed at $68,000 and reasonable disbursements save for disbursements incurred for the second tranche of the hearing. The plaintiffs now appeal against my decision. These are the full grounds of my decision.
Facts The partiesThe first plaintiff, Ms Ng Siok Poh, was Mr Lim’s wife. The second plaintiff, Mr Lim Hong Liu, is one of Mr Lim’s sons. After Mr Lim passed away on 7 October 1987, the plaintiffs were appointed to administer his estate. The first plaintiff passed away after this action (“Suit 248”) was commenced.
The defendant is a Singapore-incorporated company and in the business of construction. The defendant is the developer of The Amery, a condominium which is located on the plot of land adjoining the Property.
Background to the disputeMr Lim, who worked in the construction industry, designed and built the Property in the 1970s as a family home. He had seven children with his wife; and the Property, which has seven bedrooms, reflects the size of the family (“the Lim family”). The Property was a labour of love for Mr Lim. Having purchased the land with his savings, Mr Lim built the Property over three years using carefully selected materials. Mr Lim’s children grew up in the Property. Clearly, the Property had great sentimental value to the Lim family.
In the 1990s, after Mr Lim’s death, two neighbours of the Lim family chose to sell their land to a developer and proposed that the Lim family similarly sell the Property for the parties to participate in a joint development of their land. However, the Lim family decided not to sell the Property. According to the second plaintiff, this was because the Property had “a special value to the Lim [f]amily that transcends any monetary value that one can ascribe to it”: it was constructed as the family home, and constitutes Mr Lim’s legacy to his family. The Lim family was keen to preserve Mr Lim’s legacy.
In 2007, property agents approached the Lim family to sell the Property. However, for similar reasons, the Lim family chose not to sell the Property.
In late 2008, the defendant began the construction works for The Amery. Thereafter, the defendant commenced excavation works for the construction of the basement carpark of The Amery.
In about late March 2009, the second plaintiff noticed that the Property had sustained damage: cracks had formed, tiles on the building apron had been forced out and the polyvinyl chloride grilles on the drains were bending and breaking. On 2 April 2009, he began to suspect that the Property was tilting when he observed that the metal main door grille was closing by itself. The tilting was also evident from ponding of water in the Property, and tests conducted using a marble ball which ran quickly in the direction of the tilt.
A joint inspection of the Property was conducted on 3 April 2009. Dr Yong Deung Ming (“Dr Yong”), a professional engineer engaged by the defendant, attended the inspection, and issued a letter to the defendant. In his letter, Dr Yong certified that, as of 3 April 2009, “there [was] no imminent sign of damage, distress, distortion or [danger]” to the Property and that the Property was “structurally sound and safe for its intended usage”. However, the second plaintiff took objection to this letter and began corresponding with the Building and Construction Authority (“the BCA”). Shortly thereafter, on 8 April 2009, two tiltmeters were installed on the Property. Measurements were taken of the tilt on 9 and 25 April 2009 (“the April 2009 Measurements”). The April 2009 Measurements were taken by optical survey, as opposed to measurements from the tiltmeters, and purported to be measurements of the absolute tilt of the Property (see [13] and [42] below).
On 15 April 2009, the BCA informed the second plaintiff that it had issued a Stop Work Order directing the defendant to cease excavation works while Dr Yong conducted a detailed assessment of the same.
On 15 May 2009, Dr Yong issued a report on the excavation works. He then issued a further report, on 25 June 2009, certifying that the Property was safe for residential usage, and a letter on 11 August 2009 certifying that the Property was “structurally sound and safe for its continued occupation”. As will be seen later, the accuracy of the April 2009 Measurements, which were reflected in Dr Yong’s reports in May and June 2009, turned out to be the source of much controversy in this case.
Following the issuance of these reports, various measurements were taken from the tiltmeters from March 2010 to July 2012. It is important to appreciate that these measurements did not assess the absolute tilt of the Property,
The construction works eventually resumed, and the Temporary Occupation Permit for The Amery was issued in November 2010.
On 27 July 2012, JIB Specialist Consultants Pte Ltd prepared a report (“the July 2012 Report”), which was checked and approved by Dr Yong, after a further inspection of the Property on 24 July 2012, to assess whether its state had deteriorated from July 2010 to the date of the inspection. In the July 2012 Report, Dr Yong stated that he “was satisfied that the structural condition of the building remained as stable as it was two years ago”. In other words, the Property was stable by July 2010. This conclusion was based in part on the readings taken by the two tiltmeters between March 2010 and July 2012 (see [13] above) assessing the situation against the state of the Property on 8 April 2009, which showed that the tilt had only worsened slightly from 2009 to 2010 before becoming stable after 2010. No measurements of absolute tilt (see [13] above and [42] below) were taken in July 2012. In other words, no measurements were taken to ascertain exactly how much the Property had tilted from the start.
As of the date of the proceedings before me, the Lim family continued to reside in the Property: the second plaintiff, two of his sisters, a brother, sister-in-law and niece, and two helpers occupied the Property. The Property remained registered in Mr Lim’s sole name.
Procedural historyOn 4 March 2014, the plaintiffs commenced Suit 248 in their capacities as the administratrix and administrator of Mr Lim’s estate. Their case was that, in constructing The Amery, the defendant caused damage to the Property, including the tilting of the Property, and was therefore liable in tort for private nuisance and negligence. The plaintiffs claimed the costs of reinstating the Property to its original state and of alternative accommodation and transport expenses while reinstatement works were carried out; and, alternatively, the diminution in value of the Property.
On 14 August 2014, the plaintiffs obtained interlocutory judgment, by consent, with damages to be assessed and with “all issues relating to causation, damages, cost and interest … reserved”.
The first tranche of the assessment of damages hearing was convened on 3 to 5 November 2015. On 4 November 2015, I conducted a site visit to assess first-hand the extent of the problem caused by the tilt.
On 3 December 2015, shortly before written closing submissions were filed, the second plaintiff applied for leave to adduce further evidence of the current state of the tilt of the Property. Pertinently, during the first tranche of the hearing, the parties and their experts had proceeded on the basis that the Property had ceased to tilt since around 2010, in line with Dr Yong’s conclusion in the July 2012 Report. The parties had relied on tiltmeter readings in the July 2012 Report showing that the tilt had stabilised from 8 April 2009 to 24 July 2012 (see [15] above). However, the second plaintiff sought to reopen the evidence on the basis that this common assumption was incorrect: the tilt had in fact worsened since 2010.
On 4 April 2016, I granted the second plaintiff’s application. I ordered the parties to jointly engage an independent surveyor to measure the tilt, in line with a methodology to be agreed by the engineering experts, Mr Lim Kim Cheong (“Mr Lim KC”) for the plaintiffs and Assoc Prof Tan Siew Ann Harry (“Assoc Prof Tan”) for the defendant, and these measurements would bind the parties. I also ordered the said experts to file a joint report or individual reports based on the measurements, and granted the parties leave to cross-examine the experts. Thereafter, the parties’ engineering experts filed separate supplemental reports...
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