Ng Siok Poh v Sim Lian-Koru Bena JV Pte Ltd

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Judith Prakash JA
• Judgment Date: 03 July 2018
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 130 of 2017
• Date: 03 July 2018

Ng Siok Poh (administratrix of the estate of Lim Lian Chiat, deceased) and another

and

Sim Lian-Koru Bena JV Pte Ltd

[2018] SGCA 35

Sundaresh Menon CJ, Andrew Phang Boon Leong JA and Judith Prakash JA

Civil Appeal No 130 of 2017

Court of Appeal

Damages — Measure of damages — Tort — Damage to property — Cost of reinstatement — Mode of reinstatement — Nuisance or negligence causing landed property to tilt — Whether to award cost of reinstatement — How to quantify cost of reinstatement

Damages — Measure of damages — Tort — Damage to property — Nuisance or negligence causing landed property to tilt — Whether to award damages for loss of amenity

Held, allowing the appeal in part:

(1) The choice of the mode of reinstatement, including the decision whether to award the cost of a partial or full reinstatement, was part of a broader inquiry into the suitable measure of damages. When deciding the suitable measure of damages, the governing principle was one of objective reasonableness. In assessing whether it was reasonable to reinstate the property and what the reasonable cost of reinstatement was, the court would take into account (a) the property's unique or sentimental value, or special use or purpose; and (b) the proportionality of the cost proposed to be incurred to the loss suffered by the plaintiff. In deciding between alternative modes of reinstatement, the court would weigh the relative costs and benefits of each mode and determine if the additional cost of more extensive reinstatement works was justified by the advantages. Everything would depend on the precise facts and circumstances of the particular case: at [35].

(2) The Judge did not err in awarding damages based on the Aesthetics Method. First, the Judge had given due consideration to the Property's special value, which did not justify a complete reinstatement at all costs. Second, it was not open to the appellants to contend on appeal that the Property's utility had been diminished because it was not part of their case below that the tilt hindered their ability to carry out renovations. Third, based on the evidence adduced, the Property was structurally safe and there was no convincing evidence of the tilt increasing. In these circumstances, it was not reasonable to require the respondent to bear the significantly higher costs of rectifying the actual tilt using the Underpinning Method. In the interests of finality, the case could not be remitted to the High Court so as to allow the appellants to adduce evidence of the Building and Construction Authority's view of the safety and stability of the Property and its recommended course of action: at [44], [47], [58] and [59].

(3) Damages could be awarded not only for physical damage to property but also non-pecuniary loss such as inconvenience and discomfort arising from the injury to the property. In the present case, damages were not awarded for prospective loss of amenity because the Aesthetics Method would address the second appellant's discomfort with the sense that the Property was tilting. However, damages were awarded for past loss of amenity from 2009 until such time that the Property was reinstated by the Aesthetics Method: at [64] to [66].

(4) As a general principle, a plaintiff was allowed to recover damages for losses reasonably incurred in mitigation even though the resulting damage was greater than it would have been had the mitigating steps not been taken. A plaintiff's intervening act, reasonably taken to safeguard his interests, did not relieve the defendant of liability for the resulting loss. The test for recovery was simply whether the act or omission which gave rise to the increased loss was a reasonable step for the plaintiff to take. In quantifying the award for the costs of the Aesthetics Method, the appellants should have been allowed to recover the cost of replacing the doors that had been chamfered to fit the tilted door frames so that the doors would remain usable. However, the Judge did not err in denying the cost of repairs to the external façade and the wet areas apart from two bathrooms: at [68] to [71].

(5) The appellants were awarded the costs of the whole trial below, including the second tranche. Although they failed to prove, during the second tranche, that the tilt was increasing, the evidence adduced completely changed the tenor of both parties' cases and shifted the focus of the inquiry below. Thus, the attempt to re-open the evidence was not unmeritorious: at [73].

[Observation: It was important to emphasise the boundaries of the present decision, which had been reached on the basis of evidence led at the trial. Courts determined cases based on the evidence presented by the parties, which was often the result of tactical or strategic decisions made by the parties with the advice of counsel. That the court found insufficient evidence before it to support the appellants' case that the Property was structurally defective and more vulnerable did not imply that there was in fact no risk or defect of the sort alleged by the appellants; the court concluded that such risk or defect had not been proven on a balance of probabilities based on the evidence presented. The appellants bore responsibility for the tactical decisions made throughout their case. The decision of the court could not exculpate the first appellant if damage of the sort now claimed (albeit without the evidentiary basis) materialised in the future. If the second appellant remained concerned that there was a possibility that structural defects could appear in the foreseeable future as a result of the tilt, he was strongly urged to consult the Building and Construction Authority: at [60].]

Case(s) referred to

Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 WLR 433 (refd)

Douglas Bryant v Frank Harvey MacKlin [2005] EWCA Civ 762 (refd)

Lodge Holes Colliery Co Ltd v Mayor of Wednesbury [1908] AC 323 (refd)

Walter Frederick Scutt v John Lomax 2000 WL 394 (refd)

Ward v Cannock Chase District Council [1986] Ch 546; [1985] 3 All ER 537 (refd)

Facts

In 2009, an excavation to build the basement carpark of a condominium known as The Amery caused the soil around the neighbouring property (“the Property”) to shift, causing the Property to tilt towards the excavation site. The Property was built in the 1970s by the late Mr Lim Lian Chiat. The first and second appellants were respectively the late Mr Lim's wife and son, both administrators of the late Mr Lim's estate. The Property was of immense sentimental value to the Lim family. At the time of the appeal, the second appellant and two of his siblings were still residing in the Property. The first appellant passed away in the course of the suit below.

In March 2014, the appellants commenced the suit below, alleging that the respondent, the developer of The Amery, was liable in tort for private nuisance and negligence that resulted in damage to the Property. On 14 August 2014, interlocutory judgment was entered by consent, with all damages to be assessed and all issues relating to causation, damages, cost and interest to be reserved.

After two tranches of trial for the assessment of damages, the High Court Judge decided that the appropriate measure of damages was the cost of reinstating the Property. The Judge assessed the cost of reinstatement based on the costs of aesthetic works that would remove the appearance of a tilt from the Property (“the Aesthetics Method”). He rejected the significantly higher costs of micro-pile underpinning works to lift up the Property, reinforce the foundation and set the Property upright so as to remove the actual tilt altogether (“the Underpinning Method”). The Judge also did not award the appellants damages for loss of amenity because, by eliminating any perception of a tilt, the Aesthetics Method would directly address the loss of amenity suffered by the appellants.

On appeal, the appellants contended that damages ought to be assessed based on the costs of the Underpinning Method. Alternatively, they claimed damages for loss of amenity and damages for certain items of aesthetic works that the Judge had excluded from his assessment. They also claimed the costs and disbursements of the second tranche of the trial.

Cavinder Bull SC, Lin ShuminandMadeline Chan (Drew & Napier LLC) for the appellants;

Mahendra Prasad Rai and Dean Salleh (Cooma & Rai) for the respondent.

3 July 2018

Judgment reserved.

Andrew Phang Boon Leong JA (delivering the judgment of the court):

1 This dispute concerns a house at 30 Lorong K Telok Kurau (“the Property”) which was designed and built by the second appellant's father, Mr Lim Lian Chiat (“the late Mr Lim”), in the early 1970s as the family home. The Property was built over three years using materials carefully selected by the late Mr Lim. Viewed as the late Mr Lim's legacy, it is of immense sentimental value to the appellants' family and remains the centre of family gatherings to this day. Three of the late Mr Lim's children, including the second appellant, continue to reside in the Property.

2 In 2008, the respondent began developing a condominium known as “The Amery” on the plot of land adjoining the Property. From March to April 2009, the adjoining plot of land was excavated to construct the basement of The Amery. This excavation caused the soil around the Property to shift. The result was that the Property began to tilt towards the excavation site.

3 In March 2014, the appellants sued the respondent for damage to the Property in the torts of private nuisance and negligence. Interlocutory judgment was entered in favour of the appellants. The trial below centred on the assessment of damages. To be specific, it centred on the question of whether damages should cover the cost of reinstating the Property using micro-pile underpinning (ie, lifting up the Property's...