Ng Siok Poh (administratrix of the estate of Lim Lian Chiat, deceased) and another v Sim Lian-Koru Bena JV Pte Ltd [2018] SGCA 35

This dispute concerns a house at No 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.

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.

Background facts

The first appellant was the late Mr Lim’s widow. In 2014, after the commencement of the suit, she passed away. The second appellant, Mr Lim Hong Liu, is one of the late Mr Lim’s children. Both appellants were administrators of the late Mr Lim’s estate before the first appellant passed away. Since only the second appellant has had conduct of the case, we will refer to him as “the appellant”.

In 2007, the respondent purchased the land adjoining the left side of the Property and, in 2008, began construction works to build The Amery. The excavation to build the basement carpark of The Amery commenced between 9 and 23 March 2009, with varying start dates for different parts of the site. It is common ground that the excavation caused the soil around the Property to shift, and the Property to tilt towards the excavation site.

The tilt was first discovered in late March 2009, when the appellant noticed crack lines appearing on the car porch. Tiles on the building apron had been forced out and grilles on the drains were bending and breaking. The appellant suspected that the Property was tilting when he found that the metal main door grille was closing by itself. There was also ponding of water in the bathrooms.

After the respondent was alerted to the tilt, the parties jointly inspected the Property on 3 April 2009. The respondent engaged Dr Yong Deung Ming (“Dr Yong”), a professional engineer, to inspect the Property. Dr Yong reported that 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”. The appellant was not satisfied and escalated the matter to the Building and Construction Authority (“the BCA”).

On 8 April 2009, two tiltmeters were installed on the Property. The tiltmeters measured the tilt of the Property with the state of the Property on 8 April 2009 as a baseline. In other words, they only measured how much more the Property tilted from 8 April 2009 onwards, without accounting for the pre-existing tilt.

Separately, Dr Yong took two measurements of the tilt of the Property by optical survey on 9 and 25 April 2009 (“the 2009 Measurements”). The 2009 Measurements were measurements of the absolute tilt of the Property, ie, the extent to which the Property deviates from a vertical straight line. The absolute tilt is measured by dropping a plumb line from the top of the building and measuring the height-distance from the plumb line to the building wall. The absolute tilt is expressed as a ratio of this distance of deviation over the height of the plumb line. A larger ratio means that the absolute tilt is more acute. For example, 1/100 represents a larger tilt than 1/500.

As a result of the appellant’s complaint, the BCA issued the respondent with a Stop Work Order around 15 April 2009, prohibiting the respondent from carrying out more excavation works and permitting only strengthening works. The basement slabs for The Amery were cast between 21 and 25 April 2009.

The BCA also required Dr Yong to prepare a further report on his assessment of the tilt of the Property. In a further report dated 15 May 2009 and subsequent letters dated 25 June 2009 and 31 August 2009, Dr Yong assessed the Property to be structurally sound and safe for continued use as a residence. Based on the 2009 Measurements, he advised that the absolute tilt was within tolerable limits and appeared to have stabilised. The tilt continued to be monitored using measurements from the two tiltmeters until July 2010, before a final tiltmeter measurement was taken in July 2012 for a review.

On 27 July 2012, JIB Specialist Consultants Pte Ltd prepared a report, which was checked and approved by Dr Yong, after a further inspection of the Property (“the July 2012 Report”). The aim was to assess whether the state of the Property had deteriorated from July 2010 to July 2012. The July 2012 Report relied among other things on the readings taken by the two tiltmeters between March 2010 and July 2012, which showed that the tilt worsened slightly from 2009 to 2010 and stabilised after 2010. Dr Yong stated that he was satisfied that the structural condition of the building remained as stable as it was in July 2010, and that the building was safe for continued occupation.

Procedural history

In this first tranche, Mr Lim K C and Prof Tan based their opinions on the 2009 Measurements which showed that the absolute tilt ranged from 1/438 to 1/875 at different locations on the Property. Mr Lim K C and Prof Tan furnished a joint report dated 12 January 2015 stating that the existing structure had stabilised and no further movements were observed. They were in agreement that the structure was safe for residential occupation. They disagreed about whether it was necessary to restore the Property to true verticality using the micro-pile underpinning method.

During the first tranche, both experts also introduced a set of guidelines known as the “Eurocode 7: Geotechnical Design” which were adopted by the BCA in April 2015 (“the BCA Guidelines”). These guidelines were used to interpret tilt ratios and thereby assess a building’s structural safety. Two ratios were relevant to the present case: 1/500 and 1/150 (“Safety Limits”). According to the BCA Guidelines, 1/500 was a safe limit for buildings where cracking or structural damage would not occur; 1/150 was a limit at which considerable cracking in panel walls and brick walls was to be expected and structural damage of buildings was to be feared.

On 3 December 2015, the appellant applied for leave of court to adduce further evidence of the “current state of the tilt” of the Property. In his affidavit, the appellant explained that until the trial, all indications, based on reports prepared by professionals engaged by the respondent, were that the tilt had not worsened since 2010. However, in the midst of the trial, the appellant decided to engage professionals to verify the degree of the tilt “as a matter of prudence”. He elaborated in a further affidavit that between 2012 and 2015, he could sense the tilt was still there but was assured by the July 2012 Report that it had not worsened. Moreover, no further crack lines were observed. However, during the Judge’s site visit on 4 November 2015, laser beams and levelling plumbs were used to demonstrate the tilt. This indicated to the appellant and Mr Lim K C that the tilt could be worse than they had originally thought. The appellants thus commissioned Tritech Engineering & Testing (Singapore) Pte Ltd (“Tritech”) to determine the state of the absolute tilt. Based on Tritech’s report dated 1 December 2015 (“Tritech’s Report”), the appellant claimed that the tilt “has worsened considerably such that the structure of the Property is severely compromised”. The appellant sought to adduce Tritech’s Report as further evidence, on the basis that it would have a significant bearing on the main issue of whether underpinning was the right mode of reinstatement.

The Judge granted the appellant’s application in part on 4 April 2016 and re-opened the trial. He ordered the parties to jointly engage an independent surveyor to measure the tilt using an agreed methodology. The joint surveyor, Tang Tuck Kim Registered Surveyor (“TTK”), produced data of the absolute tilt surveyed on 14–16 June 2016 (“the 2016 Measurements”). The 2016 Measurements showed that the Property‘s absolute tilt ranged from 1/78 to 1/150; of the eight locations measured, all but one had exceeded 1/150.

Mr Lim K C and Prof Tan subsequently filed separate supplemental reports and were cross-examined on 20 February 2017. In the second tranche, Mr Lim K C and Prof Tan were still in agreement that the Property was structurally safe and stable. However, they differed in their views of the significance of the absolute tilt having exceeded the 1/150 safety limit and whether the BCA would require the Property to be set upright as a consequence. They also struggled to make sense of the 2009 Measurements, tiltmeter readings and 2016 Measurements, which taken together suggested a sharp increase in the tilt between July 2012 to June 2016 even though the tilt should have stabilised soon after the basement slabs were cast in April 2009.

Parties’ cases below

(a) Their primary submission, and eventually their only submission in the second tranche, was that they should be compensated for the cost of micro-pile underpinning works to lift up the Property, reinforce the foundation and set the Property upright, removing the tilt altogether (“the Underpinning Method”). Based on the experts’ views on three quotations, the Judge found that the Underpinning Method would cost $2,292,000.

(b) Their reserve submission was that they should be awarded the costs of aesthetic works that would remove the appearance of a tilt on the interior and exterior of the Property (“the Aesthetics Method”). If awarded this, the appellants also asked for damages for loss of amenity. The appellants’ quantity surveyor quantified the works necessary for the Aesthetics Method at $665,094.15.

The respondent argued that the Underpinning Method and Aesthetics Method were unreasonable because the Property was structurally safe; even the Aesthetics Method went beyond repairing existing defects to redoing parts of the Property that were not damaged. It submitted that the appellants were only entitled to $47,600 to repair existing defects to the Property resulting from the tilt.

Decision below

There were four issues before the court below (GD at [25]):

(a) whether the appropriate measure of damages was the reinstatement costs or the diminution in value of the Property;

(b) if the appropriate measure was reinstatement costs, whether damages should be awarded based on the Underpinning Method or the Aesthetics Method, and what was the quantum to be awarded;

(c) if the Aesthetics Method was appropriate, whether the appellants were also entitled to damages for loss of amenity; and

(d) whether to award interest on the damages assessed, and what the appropriate costs order was.

(a) The Judge found that the Property stopped tilting further after the completion of the construction of the basement of The Amery (in particular, the laying of the base slab). The 2016 Measurements reflected a more acute tilt because the 2009 Measurements were inaccurate and had understated the tilt (GD at [50]).

(b) Although the Safety Limits had been exceeded at all but one point in the Property, thus effectively eliminating the safety reserve, the Property was still safe for habitation (GD at [54]). The Judge accepted Prof Tan’s evidence that the BCA would not require the safety reserve to be restored and the tilt to be eliminated if the building was structurally safe (at [56]). The Judge preferred Prof Tan’s opinion because, first, Mr Lim K C did not state in his report that the BCA would require the safety reserve to be restored; second, there was no evidence of the BCA’s position even though the appellants had ample time to obtain confirmation from the BCA; and third, if the Property was structurally safe and there was no evidence of further tilting, it was logical that the BCA would not require the appellant to carry out the costly and invasive Underpinning Method. In relation to old buildings which were not designed according to more recent specifications, the BCA’s paramount consideration would be structural safety rather than the safety reserve.

(c) Since the restoration of the safety reserve was not material, it was not reasonable to incur the significantly higher costs of the Underpinning Method (which came up to 29% of the Property’s value) when the Aesthetics Method, with its significantly lower cost, would equally remove the sense of the tilt (GD at [62]). It was mere speculation that the Property might become unsafe due to a subsequent event if it was not set upright.

The Judge did not award the appellants damages for loss of amenity because the Aesthetics Method would eliminate any perception of the tilt and would thereby directly address the loss of amenity suffered by the appellants (GD at [84]).

Issues

There are four issues in this appeal, three of which only need to be considered if the appellant fails on the first issue:

(a) whether damages should be assessed based on the Underpinning Method or the Aesthetics Method;

(b) if the Aesthetics Method is the appropriate method, whether damages for loss of amenity should be awarded to the appellant;

(c) if the Aesthetics Method is the appropriate method, whether the Judge erred in refusing to award the costs of new doors and repairs to the additional bathrooms and the external façade of the Property; and

(d) whether the appellant should have been awarded costs and disbursements for the second tranche.

Parties’ cases on appeal

On the first issue, the appellant submits that the Underpinning Method should be applied because it is the only way to eliminate the tilt which has exceeded the Safety Limits. He contends that he has been left with an inferior building for two main reasons. First, the tilt has diminished the Property’s utility because the BCA will not allow major renovation works to be carried out without the tilt having first been rectified. Second, the tilt has diminished the Property’s safety because the Safety Limits have been exceeded and the BCA would require the Property to be set upright as a consequence. He argues that the Judge erred in his assessment of the evidence when he concluded that the BCA would not require the safety reserve to be restored. Finally, he also contends that the Judge failed to accord sufficient weight to the unique value of the Property when deciding what a reasonable owner would do.

If the appellant fails to be awarded damages assessed using the Underpinning Method, then in the alternative, the appellant argues:

(a) He should be awarded damages for loss of amenity on the basis that his ability to use the Property and his sense of comfort and safety have been diminished. Even if such damages are not awarded for his prospective loss of amenity, he claims to be entitled, at the very least, to damages for loss of amenity for the period from 2009 to the date when the perception of the tilt is rectified to compensate him for the “discomforting perception of tilt”.

(b) In determining the quantum of damages based on the Aesthetics Method, the Judge should have awarded the cost of repairs to remove the sensation of tilt from the Property’s wet areas and external façade as well as the cost of replacing the doors.

(c) He should be awarded the costs of the second tranche which was convened because the tilt was far more severe than originally thought and the Safety Limits had been exceeded.

If the Aesthetics Method is upheld, the respondent seeks to defend the Judge’s decision on the remaining three issues for the reasons given by the Judge.

Our decision

Issue 1: Underpinning Method or Aesthetics Method

The law

The above dicta were applied at first instance in Dodd Properties Ltd and another v Canterbury City Council and others [1980] 1 WLR 433 (“Dodd Properties”). In that case, the defendants erected a multi-storey carpark next to the garage owned by the first plaintiff and leased by the second plaintiff. The pile-driving operations to build the multi-storey carpark caused damage to the garage such as cracks in the walls and concrete floor. Settlement and movement of the foundations also caused distortion to the garage building’s steel frame to a degree not perceptible by ordinary observation. This distortion resulted in the flat roof sloping slightly in the wrong direction.

Application to the facts

The appellant argues that the Property’s utility and safety would be compromised if the actual tilt were not eliminated. He also argues that the Judge failed to give sufficient weight to the special value of the Property when considering the reasonableness of the Underpinning Method. We address these arguments in turn.

Next, the appellant contends that if the actual tilt were not eliminated, the Property’s utility would be diminished because the Lim family would not be able to obtain the BCA’s approval to perform renovation works in the future. He focuses on Prof Tan and Mr Lim K C’s evidence that if major renovation works were to be done, the Property would have to comply with the Safety Limits under the BCA Guidelines notwithstanding that it is an old building. Thus, they claim that before any renovation works can be carried out, the absolute tilt would have to be corrected because it currently exceeds the Safety Limits.

However, as the respondent correctly points out, it was never part of the appellant’s case at trial that the actual tilt needed to be rectified in order for the BCA to grant approval for future renovation works. Rather, his case was that the actual tilt had to be rectified simply because the Safety Limits had been breached and the tilt was still worsening. In his closing submissions after the second tranche of the trial, the appellant did submit that the BCA would require compliance with the BCA Guidelines before issuing any permits for future renovation works. However, the appellant had not given evidence of his intention to carry out renovations, or of what kind. The appellant’s written case in this appeal is the first time that he mentions the installation of a lift as an example of renovation works that the Lim family intends to effect in the future. Moreover, since the ability to perform renovation works was not part of the appellant’s case, the experts were not examined on the scope of renovation works that would require the Property to first be set upright. This would have been relevant to assessing the extent to which the future utility of the Property has been diminished. It was only in response to the Judge’s queries about the applicability of the Safety Limits in the BCA Guidelines to pre-existing buildings that the experts had made remarks about future renovation works during the trial.

Given the way the case was run at trial, we do not think it is open to the appellant to now base his submission for the Underpinning Method on potential renovations in the future. As there is no evidence that the appellant plans to carry out renovation works, it would be too speculative to factor this into our assessment as to whether the utility of the Property would be diminished if the Aesthetics Method were employed. Leaving aside potential renovations, the experts are in agreement that the Property is fit for continued use as a dwelling house.

Finally and most significantly, the appellant contends that the actual tilt must be eliminated because it diminishes the safety of the Property. His key contention is that the Property must be set upright via the Underpinning Method because the Safety Limits have been exceeded. He makes several points to show that the Judge erred in his assessment of the evidence, especially as regards the significance of breaching the Safety Limits:

(a) First, he relies on the experts’ evidence in the first tranche that structural damage is to be expected when the safety limit of 1/150 has been exceeded. Both experts used the BCA Guidelines as a mandatory and objective reference point for assessing the safety of the Property’s tilt in the first tranche. At that point, Prof Tan’s opinion was that the Property’s tilt was acceptable because it was within the 1/500 limit. The appellant claims that it was only during the second tranche, upon realising that the Property’s absolute tilt was 1/78 to 1/150, that Prof Tan sought to downplay the BCA Guidelines as merely informative and not binding.

(b) Next, the appellant argues that since the Safety Limits have been breached, the BCA would require the tilt to be corrected notwithstanding that the Property is an old building. He criticises Prof Tan for confining the applicability of the BCA Guidelines to new designs and newly constructed buildings, and relies instead on Mr Lim K C’s view that the BCA would require all buildings to comply with the prevailing safety standards.

(c) Finally, the appellant claims that because the Safety Limits have been exceeded, the Property is more vulnerable and can only be said to be safe for habitation for the time being. He emphasises that both parties’ experts recommended continued monitoring of the Property. During the oral hearing, the appellant’s counsel, Mr Cavinder Bull SC (“Mr Bull”), stressed that a reasonable owner of the Property would correct the actual tilt because, being on notice that the Property has exceeded the BCA’s Safety Limits, the owner would potentially be liable to third parties entering his Property if the Property were to collapse.

In response, the respondent submits that the loss of the safety reserve is not an issue if the Property is structurally safe and there is no further tilting. Moreover, it is for the appellant to show that the BCA would require the tilt to be corrected. The respondent also submits that Prof Tan did not shift his position in the second tranche, but maintained all along that it was where a building’s differential distortion (as opposed to absolute tilt) exceeded the Safety Limits that structural damage would result.

In our view, it is not obvious from the evidence before the Judge that, simply because the Safety Limits have been exceeded, the Property is unsafe and the actual tilt must be eliminated. On the one hand, the 2016 Measurements appear alarming if an absolute tilt beyond 1/150 is as severe as the experts had explained in the first tranche – namely, that it would cause serious structural damage or problems. Considering the severity of the 2016 Measurements, Mr Lim K C’s view was that the BCA would direct the appellant to eliminate the actual tilt and restore the Property’s safety reserve.

On the other hand, the experts were still in agreement during the second tranche that the Property was structurally safe and stable on a visual inspection and that no large cracks were observed. In other words, the structural damage that, according to the guidelines referred to by the experts, is to be expected when a tilt exceeds 1/150 has not materialised. Though the Property has lost its safety reserve, it is not patent that the Property is thereby in a perilous condition. Prof Tan explained that there was no risk of collapse because a tilt of about 0.5 degrees was relatively small and the Property’s centre of gravity was well within the base of its foundation. Matters were further complicated by the experts’ comparison of absolute tilt and differential distortion. Differential distortion refers to the difference in the absolute tilt of two points of a building, ie, where different parts of the building tilt to different degrees. According to Prof Tan, it is differential distortion (not merely absolute tilt) beyond the Safety Limits that causes differential stress in the structural components and leads to structural damage such as cracks or collapsing beams.

Ultimately, as the Judge noted, the appellant’s case on the implications of the tilt breaching the Safety Limits and the loss of the safety reserve was entirely built on the BCA’s likely response. Yet, there was no evidence from the BCA on whether it would have directed the actual tilt to be rectified. The Judge was asked to come to a conclusion based on the experts’ evidence and arrived at the view that the appellant had not discharged his burden of proof. He found that Prof Tan had given a cogent explanation as to why the BCA would not require the Property to be set upright in the present case.

Like the Judge, we have difficulty understanding why the BCA was not informed that the Property’s tilt had exceeded the Safety Limits so that the BCA could assess the safety of the Property and ascertain whether it was necessary to set the Property upright. In our view, evidence of the BCA’s position would have been determinative. It would have greatly strengthened the appellant’s case if the BCA had concluded that the Property was unsafe and that the safety reserve had to be restored. Conversely, if the BCA had concluded that it was unnecessary to set the Property upright, that would have laid to rest the appellant’s concerns about safety and future liability to occupants or visitors.

Nonetheless, we were concerned about concluding, without the benefit of the BCA’s views, that the Property presents no potential safety issues in the present or foreseeable future. However remote the probability may appear on the evidence presented to us, the risk, if it materialised, could cause serious harm. We had some sympathy for the appellant’s contention that, having been fixed with notice that the tilt has exceeded the Safety Limits prescribed by the BCA, the family could be vulnerable to liability to third parties or face difficulty insuring the Property. Hence, we considered whether to remit the case to the Judge so as to allow the appellant to adduce evidence of the BCA’s view on the safety and stability of the Property and the BCA’s recommended course of action.

Having considered the matter carefully, we have concluded that we cannot now remit this issue to the Judge for further evidence to be taken from the BCA. The appellant must live with the tactical decisions he made in the course of litigation below in relation to the evidence he has chosen to adduce or omit. Furthermore, the Judge has made factual findings about the implications of breaching the BCA Safety Limits, and it is in the interests of finality that we do not re-open the inquiry.

It is important that we emphasise the boundaries of our decision, which has been reached on the basis of the evidence led at the trial. Courts determine cases based on the evidence presented by the parties, which is often the result of tactical or strategic decisions made by the parties with the advice of counsel. That we find insufficient evidence before us to support the appellant’s case does not imply that there is in fact no risk or defect of the sort alleged by the appellant; we conclude that such risk or defect has not been proven on a balance of probabilities based on the evidence presented. The appellant bears responsibility for the tactical decisions made throughout his case. Our decision cannot exculpate the appellant if damage of the sort he now claims (albeit without the evidentiary basis) materialises in the future. If the appellant remains concerned that there is a possibility that structural defects could appear in the foreseeable future as a result of the tilt, we strongly urge the appellant to consult the BCA.

Accordingly, we dismiss the appeal on the first issue.

Issue 2: Damages for loss of amenity

First, if the absolute tilt is not eliminated, the appellant seeks damages of $150,000 for loss of amenity for the fear and discomfort of living in a house that has been tilted beyond the Safety Limits and his limited ability to renovate the Property going forward. Even if such damages for prospective loss of amenity are not awarded, he seeks damages of $50,000 for loss of amenity during the period from 2009 until such time as the Property is reinstated by the Aesthetics Method.

It may be useful to state some general principles at the outset. In addition to damages for physical damage to property, the court may award damages for non-pecuniary loss such as inconvenience and discomfort arising from the injury to the property. In the English High Court decision of Ward v Cannock Chase District Council [1985] 3 All ER 537, damages were awarded for the discomfort experienced by the plaintiffs due to the council property falling into disrepair and creating a hole in the plaintiffs’ roof, until the date that the plaintiffs’ property was restored. The court found it reasonably foreseeable that the plaintiffs would experience discomfort due to the council’s neglect. Where the plaintiffs’ enjoyment of the property is not fully restored (or will not be restored for some time), an award may also be made to compensate the plaintiffs for the interference with their enjoyment of the property. Thus in Scutt v Lomax and Bryant v MacKlin, which concerned the tort of trespass (see [40]–[41] above), the English Court of Appeal supplemented an award for reinstatement of the trees with an award for the partial loss of amenity to the respective claimants.

We agree with the Judge that damages should not be awarded for the appellant’s prospective loss of amenity. The Aesthetics Method addresses the appellant’s discomfort with the sense that the Property is tilting. We are not persuaded that the appellant will continue to live in fear or discomfort due to his knowledge that the Property’s absolute tilt is in breach of the Safety Limits. We agree with the Judge’s conclusion that the appellant was mainly concerned with the appearance of a tilt which would be fully rectified by the Aesthetics Method. Though the appellant testified that he was fearful for the residents’ safety when the tilt was reported to the BCA in April 2009, we infer from the fact that he has continued to live in the Property that he has felt assured that it is structurally safe. Even after discovering that the absolute tilt exceeds the Safety Limits, he did not report the matter to the BCA again or continue monitoring the tilt from the time of Tritech’s Report, or the time of the 2016 Measurements, or even after the trial. It therefore appears to us that his concern is more with the sense of the tilt rather than with the absolute tilt.

Nevertheless, we award the appellant $50,000 in damages for past loss of amenity from 2009 until such time that the Property is reinstated by the Aesthetics Method. We acknowledge that the appellant and his relatives have had to live with the discomfort and inconvenience of sloping floors, cracks and water ponding issues in the Property since 2009. It is reasonably foreseeable that causing a tilt to the Property would lead to such discomfort and would impair their enjoyment of the Property. We thus allow the appeal on the second issue to this extent.

Issue 3: Scope of works under Aesthetics Method

(a) As regards the external façade, the Judge’s determination that the tilt was not perceptible from the outside was based on his site visit. We would be slow to interfere with this assessment without the benefit of a site visit. In any event, in his opening statement, the appellant’s counsel at the trial below had taken the position that “the tilt is not visible to the naked eye from outside” and agreed it was “common ground that the tilt is not visible to the naked eye, as it stands now” from the outside. The appellant himself did not give evidence that the tilt was perceptible to him from the outside. His affidavit in fact states that the tilt is not visible and can only be sensed upon entering the building:

(b) As regards the wet areas that have not experienced water ponding, there was no evidence that the tilt in the bathrooms was perceptible without the water ponding.

As a general principle, a plaintiff is allowed to recover damages for losses reasonably incurred in mitigation even though the resulting damage is greater than it would have been had the mitigating steps not been taken (see McGregor on Damages at para 9–102). A plaintiff’s intervening act, reasonably taken to safeguard his interests, does not relieve the defendant of liability for the resulting loss. The test for recovery is simply whether the act or omission which gave rise to the increased loss was a reasonable step for the plaintiff to take.

Issue 4: Costs of the second tranche of the trial

Conclusion

In conclusion, our orders are as follows:

(a) We affirm the Judge’s decision to award damages assessed using the Aesthetics Method, which we find to be the appropriate method of reinstatement.

(b) We award the appellant $50,000 for loss of amenity from 2009 to the time that the tilt is aesthetically rectified.

(c) We award the appellant the cost of replacing the doors, fixed at $18,620.

(d) We award the appellant the costs of the second tranche fixed at $16,000 plus reasonable disbursements.