Ng Siok Poh (administratrix of the estate of Lim Lian Chiat, deceased) and another v Sim Lian-Koru Bena JV Pte Ltd [2017] SGHC 231

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.

Facts

The parties

The 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 dispute

Mr 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, ie, the tilt vis-à-vis a vertical straight line (see further [42] below). They only measured how much more the Property tilted from 8 April 2009 onwards. Notably, by 8 April 2009, the Property had already tilted. The tiltmeter measurements did not account for this pre-existing tilt as of 8 April 2009. Rather, they used the state of the Property on 8 April 2009, which was assigned a notional tilt angle of 0.000, as a baseline, and measured the further tilt of the Property, after 8 April 2009, by reference to that baseline. Accordingly, these further measurements did not verify the accuracy of the April 2009 Measurements. They simply used the state of the Property on 8 April 2009 as a baseline from which to measure how much more the Property had tilted as opposed to exactly how much the Property had tilted from the start.

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 history

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 and the second tranche of the hearing was held on 20 February 2017.

The parties’ submissions

Interlocutory judgment was granted on the basis that issues of causation would be reserved to the assessment of damages (see [18] above). In a joint expert report dated 12 January 2015, the parties’ engineering experts agreed that “[t]he basement excavation of [The Amery] caused the damages and tilt to existing bungalow at [No] 30 Lorong K Telok Kurau”. The parties’ submissions on damages proceeded from this common ground.

The plaintiffs made the following submissions:

(a) First, on the measure of damages, the plaintiffs argued that they were entitled to the reinstatement costs and abandoned their alternative claim (see [17] above) as to the diminution in value of the Property. The plaintiffs submitted that the appropriate measure of damages was the reinstatement costs because they had a genuine desire to reinstate the Property, and the reinstatement costs were not unreasonable, ie, not grossly disproportionate to the benefit of reinstatement.

(b) Secondly, in terms of the mode of reinstatement, the plaintiffs initially suggested two types of reinstatement works. First, micro-pile underpinning works to lift up one end of the Property to remove the tilt and set the Property upright (“the Underpinning Method”). Secondly, aesthetic works to remove any sense that the Property suffered from a tilt (“the Aesthetics Method”). The plaintiffs also submitted that, if the court adopted the Aesthetics Method, they should be awarded damages for loss of amenity. In their closing submissions, the plaintiffs made clear that the Underpinning Method was their preferred option but did not abandon the Aesthetics Method. However, in their supplementary submissions filed after the end of the second tranche, for quite different reasons, the plaintiffs argued that the Underpinning Method was the only appropriate mode of reinstatement. I will address those reasons later.

(c) Thirdly, the plaintiffs sought relocation and rental costs for the period in which the reinstatement works were to be carried out.

The issues

Four principal issues arose for determination:

(a) First, what was the appropriate measure of damages: was it the reinstatement costs, or the diminution in value of the Property (“the First Issue”)?

(b) Secondly, if the appropriate measure of damages was the reinstatement costs, should damages be awarded based on the Underpinning Method or the Aesthetics Method (“the Second Issue”); and, if so, what was the quantum of damages that should be awarded?

(c) Thirdly, if it were appropriate to award damages based on the Aesthetics Method, were the plaintiffs also entitled to damages for loss of amenity (“the Third Issue”)?

(d) Fourthly, was it apposite to award interest on the damages assessed, and what was the appropriate cost order (“the Fourth Issue”)?

I will now address these issues in turn.

The First Issue

The law

(a) First, whether the property has unique or sentimental value, or has a special use or purpose. In Hollebone and others v Midhurst and Fernhust Builders Ltd and Eastman & White of Midhurst Ltd [1968] 1 Lloyd’s Rep 38 (at 39), the court found that the damaged property was unique due to its size, position, features, seclusion and location. In the circumstances, the court found that the plaintiffs had acted reasonably in repairing the damage and awarded the costs of the same to the plaintiff.

(b) Secondly, whether the reinstatement costs (as opposed to damages for diminution in value) are disproportionate to the victim’s loss. In Afro-Asia, the plaintiff sued the defendants in tort for damage caused to their building. The plaintiff’s shareholders then consented to the sale of the building. Prakash J found that it would not be reasonable for the plaintiff to repair the property before selling it. The benefit of reinstatement did not justify the cost of doing so as the property would soon be sold, the plaintiff and its tenants had continued to occupy the building (thus indicating that it was still fit for its purpose), and repairing the property would not significantly increase the income that could be earned before it was sold: see Afro-Asia at [132]. Similarly, in Yap Boon Keng Sonny v Pacific Prince International Pte Ltd and another [2009] 1 SLR(R) 385 (“Sonny Yap”), the plaintiff sued the defendant for breach of contract in building undersized bedrooms. Prakash J held that it would not be reasonable to demolish and rebuild the bedrooms as the cost of doing so would be disproportionate given that the plaintiff’s loss was not the lack of usable bedrooms but the lack of additional space in those bedrooms: see Sonny Yap at [127].

(a) As a matter of authority, in Southampton Container Terminals Ltd v Schiffahrtsgesellschaft “Hansa Australia” mbH & Co (The Maersk Colombo) [2001] 2 Lloyd’s Rep 275, Clarke LJ, delivering the main judgment of the English Court of Appeal, held at [43] that the principles which governed the measure of damages for tortious damage to land and breach of contract in circumstances like Ruxley were the same. Clarke LJ noted that the House of Lords in Ruxley had relied, inter alia, on Taylor which involved tortious damage to land.

(b) As a matter of principle, as May J noted in Taylor at 667D–E, the two conditions set out at [28]–[29] above reflect two basic principles of the law of compensatory damages, which apply regardless of whether the action is in tort or for breach of contract. First, the overarching aim is to put the victim in the position that he or she would have been in if the wrong had not been committed. Secondly, this guiding aim, is however qualified by the requirement of reasonableness as seen from the perspective of both parties: the damages awarded must be “reasonable … as between the plaintiff on the one hand and the defendant on the other”: see Taylor at 667E.

Nonetheless, in my judgment, the approach in contract towards claims for loss of amenity is not quite the same as that in cases of torts affecting land. I will return to this point under the Third Issue at [80]–[81] below. I now turn to the application of the principles in [28]–[30] above to the facts.

Application to the facts

(a) First, the Property had by and large been preserved in its original form. The Property’s aesthetics reflected the design elements of a 1970s construction. This was very evident to me from my site inspection. The Property stood in stark contrast to the new condominium projects and houses which had sprouted adjacent to it and in its vicinity. It had retained the mould that it was cast in in the 1970s. That the Lim family had resisted the temptation to recast the Property in modern iteration illustrated their clear desire to preserve the Property in the form in which it was constructed by Mr Lim. The Property was more than a residence; it was a home for his family. The plaintiffs wanted to maintain that. This demonstrated that they attached significant sentimental value to the Property.

(b) Secondly, despite newer residential options in the market, the second plaintiff, who was unmarried, and three of his siblings continued to reside in the Property (see [16] above). Moreover, the second plaintiff’s evidence, which I accepted, was that Mr Lim’s children and grandchildren continued to flock back to the Property for family celebrations. This was further evidence of the Lim family’s sentimental attachment to the Property.

(c) Thirdly, the Lim family had rebuffed two offers to sell the Property to prospective purchasers who had plans to build a condominium development where the Property stands (see [6]–[7] above). Given the number of condominium developments in the vicinity, it seemed quite apparent that the Property could have been sold to developers for a substantial sum taking into account its development value. However, the plaintiffs resisted the temptation. This lent credence to the second plaintiff’s assertion that the Property was “the centre or nucleus of [the] family”.

(d) Fourthly, close to 30 years after Mr Lim’s death, the Property remained registered in Mr Lim’s sole name (see [16] above). This supported the second plaintiff’s assertion that the Property was Mr Lim’s legacy, which the Lim family was keen to preserve.

For these reasons, I concluded that the Property carried significant sentimental value to the Lim family and to the second plaintiff in particular. Having made that finding, I accepted the second plaintiff’s clear and consistent evidence that the Lim family did not intend to sell the Property, and was keen to reinstate it to preserve Mr Lim’s memory and legacy. The defendant did not challenge this evidence, as it was not the defendant’s case that the Lim family intended to sell the Property or would not reinstate it.

The Second Issue

The law

Cantley J then held that the rectification costs should be assessed on the basis of the defendants’ proposals. The plaintiff appealed against Cantley J’s decision on another ground; and, in allowing the appeal (at 447-459), the English Court of Appeal did not criticise Cantley J’s reasoning or disturb the finding on this point.

Application to the facts

I shall first examine the relative advantages of the Underpinning Method vis-à-vis the Aesthetics Method.

The relative advantages of the Underpinning Method

In this case, the plaintiffs put forward two modes of reinstatement: the Underpinning and the Aesthetics Methods (see [23(b)] above). Both of these would have eliminated the sense that the Property suffered from a tilt. However, only the Underpinning Method would have eliminated the tilt altogether.

Significantly, the plaintiffs’ initial position, as stated in their closing submissions after the first tranche of the hearing, was that the Underpinning Method was appropriate because the tilt had reduced the Property’s safety zone (“the Safety Reserve”), and not that the Property had continued to tilt. The Safety Reserve is not a technical term. It essentially means the Building’s tolerance to further tilting. As will be noted later, as described by the plaintiffs, the Safety Reserve is defined by reference to certain technical safety limits which are based on ratios. One must therefore appreciate the scientific background to understand the concept.

The technical term for a tilt in this context is “angular distortion”, which is measured in the form of a ratio. The ratio measures the absolute tilt of a building. Absolute tilt refers to the deviation from verticality, ie, the tilt vis-à-vis a vertical straight line. This must be distinguished from “differential distortion”. Differential distortion refers to the difference in the absolute tilt, or angular distortion, of two points, eg, the east and west sides of a building. Differential distortion occurs where a building does not tilt uniformly, ie, where different parts of a building tilt to different degrees. For present purposes, we are concerned only with absolute tilt.

In the present case, two ratios were relevant: 1/500 and 1/150 (“the Safety Limits”). It was undisputed that the BCA had adopted the Safety Limits by adopting the Eurocode 7 on Geotechnical Design which contained them.

In the second tranche of the hearing, the plaintiffs shifted ground significantly. On the basis that the Property had continued to tilt (which was contrary to the position found by Dr Yong), they contended that the ratios for all four corners of the Property had breached the Safety Limits. The Property was thus unsafe in view of the breach of the Safety Limits and the continuation of the tilt. Accordingly, the plaintiffs submitted that the BCA would require the tilt to be eliminated. This raised quite different considerations. It was therefore evident that one had to determine whether the basis for the submission – that the Property had continued to tilt – was correct.

In the premises, there were three factual issues for me to determine.

(a) First, was the Property continuing to tilt or had it stabilised? This was the basis on which the evidence was reopened (see [20] above).

(b) Secondly, had the Safety Limits been exceeded and what was the nature or purpose of the Safety Reserve?

(c) Thirdly, what followed from my findings on points [(a)]–[(b)] above? In particular, was the Property unsafe for habitation and would the BCA require the Property to be set upright?

(1) The stability of the Property

It was undisputed that the measurements of the tilt taken by Tang Tuck Kim Registered Surveyor (“TTK”) in June 2016, the surveyor appointed by the parties in accordance with my directions (see [21] above), showed that the tilt was worse than what was registered in the April 2009 Measurements (see [12] above). The plaintiffs’ case was that the measurements were different because the Property had continued, and was continuing, to tilt. Their theory, as reflected in a graph that was tendered during the second tranche of the hearing, was that the tilt had stabilised from 2010 to about July 2012, when further measurements had been taken and used for the July 2012 Report (see [13] above), before worsening thereafter. This theory was based on the fact that the tiltmeters, which were installed on 8 April 2009, had not recorded that the tilt had significantly worsened from then until July 2012 (see also [20] above).

I had several difficulties with the plaintiffs’ theory.

(a) First, during cross-examination, Mr Lim KC said that he had “no clues” why the tilt would have worsened. However, and crucially, he accepted that even if the tilt had worsened after July 2012, this would not have been due to the defendant’s excavation works but to some fresh and intervening event. Therefore, even if the Property had continued to tilt and was continuing to tilt after July 2012, the defendant would not be liable to the plaintiffs for the continuing tilt (on their pleaded case).

(b) Secondly, Assoc Prof Tan’s evidence was that the tilt would have ceased after early 2012, by which time the basement base slab of The Amery was cast and sealed and permanent structures were constructed to prop up The Amery. Mr Lim KC agreed with this proposition. This was a significant point in my view. Both experts were in agreement that, at the very latest, the completion of the construction of the basement of The Amery would have stopped the Property from tilting. This undercut the plaintiffs’ case that the Property was continuing to tilt post July 2012 by reason of the tortious acts of the defendant.

(c) Thirdly, the plaintiffs engaged Tritech Engineering & Testing (Singapore) Pte Ltd (“Tritech”) to measure the tilt in December 2015 (and had relied on Tritech’s report in applying to reopen the evidence). If the Property was continuing to tilt, then the tilt would have worsened from December 2015 to June 2016, when the measurements for the TTK report were taken, and this would have been apparent from the disparity between the Tritech and the TTK measurements. Yet Assoc Prof Tan’s evidence, which I accepted, was that the measurements in the Tritech report were very close to TTK’s measurements. This indicated that the Property had not tilted from December 2015 to June 2016, and thus cast doubt on the theory that the Property was continuing to tilt.

(d) Fourthly, if the plaintiffs had believed that the Property was continuing to tilt, it was unclear why further monitoring of the Property was not done, following the readings taken by Tritech, to demonstrate that the Property was continuing to tilt after December 2015, to emphatically register that point. I found this omission troubling especially because the need for further monitoring was noted in Mr Lim KC’s supplementary report. Yet, no effort was taken to carry out such activity or to apply to the court for directions for this purpose.

(e) Fifthly, if the Property had continued to tilt from July 2012, and was continuing to do so, the situation would have been apparent to the plaintiffs and to the engineering experts before the first tranche of the hearing. Yet, the parties were happy to proceed on the basis that the tilt had ceased. This also indicated that the tilt had stabilised.

For these reasons, I found that the Property had ceased to tilt, at the very latest, by July 2012, after the construction of The Amery was completed, and had stabilised since then.

Ultimately, as Mr Lim KC accepted, there was another explanation for the differences between the April 2009 Measurements and those taken in June 2016 by TTK: the April 2009 Measurements were inaccurate. I found that this was why the two measurements differed. I will explain.

(a) The parties and their experts accepted that the completion of the construction of the basement of The Amery would have stopped the Property from tilting any further (see [48(b)] above). The plaintiffs did not identify any other event, eg, a tortious act by the defendant or third parties, which would have caused the Property to tilt further after July 2012. Thus, the difference between the April 2009 Measurements and the June 2016 measurements by TTK could not be explained on the basis that the Property had continued to tilt after July 2012.

(b) The tiltmeter measurements that were used for the purpose of the July 2012 Report measured how far the Property tilted from the baseline state of the Property on 8 April 2009 (see [13] above). They showed that the tilt had only worsened slightly between 8 April 2009 and 2010 before stabilising after 2010 (see [15] above). Thus, the measurements of the absolute tilt in December 2015 (by Tritech) and June 2016 (by TTK) ought to have been only slightly different from April 2009 Measurements. (As noted at [15] above, no measurements of the absolute tilt were taken in July 2012).

(c) However, there was in fact a vast disparity between the April 2009 Measurements on the one hand and the Tritech (December 2015) and TTK (June 2016) measurements on the other (notably, these latter measurements were broadly the same).

(d) The parties did not challenge the TTK measurements that were taken in June 2016. As noted at [(a)] above, the vast disparity between the 2009 measurements and those taken in 2015 (Tritech) and 2016 (TTK) could not have been due to the tilt having significantly worsened after July 2012 as the consensus of the experts was that the tilt would have stabilised by then, following the completion of the basement.

The inexorable conclusion was that the April 2009 Measurements were incorrect.

Finally, notwithstanding the position that was taken in the second tranche, I note that, in their supplementary submissions, the plaintiffs did not argue that the Property had tilted after July 2012 and was continuing to do so. Instead, they emphasised that the tilt was worse than they had originally thought without offering any reasons why the tilt had in fact worsened. I found this telling. The plaintiffs implicitly accepted that their case that the Property had continued to tilt after July 2012 had fallen away.

Accordingly, the analysis on the appropriate remedy must proceed on the basis that the Property had stabilised.

(2) The nature of the Safety Reserve

The TTK Report indicates that TTK measured the tilt at eight points. At seven points, the tilt had exceeded the Safety Limits. The parties accepted that the TTK measurements were accurate. Thus, I found that the Safety Limits had been exceeded at all but one point in the Property. Hence, the Safety Reserve had been reduced and effectively eliminated. The crucial question, to which I now turn, was what followed from this finding.

(3) The safety of the Property

It was undisputed, and I found, that the Property was still safe for habitation notwithstanding that the Safety Limits had been exceeded.

However, the experts disagreed on whether the fact that the Safety Limits had been exceeded would have any further implications.

(a) Mr Lim KC testified that the BCA, if notified of the readings and the situation, would order the tilt to be remedied by the Underpinning Method because the Safety Reserve had been lost.

(b) Assoc Prof Tan disagreed. He testified that a distinction should be drawn between old buildings, with a predisposition to tilt, and which were not designed to today’s standards, and new properties that were to be constructed today. In relation to old buildings, the BCA’s central concern was whether the building was structurally safe. If it was, the BCA would not require the Safety Reserve to be restored because the Safety Limits were design parameters for new constructions. Otherwise, many old buildings in Singapore would have to be set upright because the Safety Reserve has been lost despite their being structurally safe.

I accepted the evidence of Assoc Prof Tan for the following reasons.

(a) First, I noted that the allegation that the BCA would require the tilt to be eliminated if it was made aware of the situation was conspicuously absent from Mr Lim KC’s supplementary report. Mr Lim KC only made this assertion during the second tranche of the hearing. One would have thought that a matter of such purported significance would have been driven home emphatically in the supplementary report. But it was tellingly silent on this point. Moreover, evidence was not reopened on this basis but on the premise that the Property had continued and was continuing to tilt, which I have not accepted (see [48]-[49] above).

(b) Secondly, and crucially, I did not understand why the BCA was not informed that the Safety Limits had been exceeded if it would have required the Property to be set upright upon learning this. It seems fairly obvious that, if the BCA had required the Property to be set upright, that would have fortified the plaintiffs’ case that the Underpinning Method was the appropriate methodology for reinstatement. The interval between the two tranches of the hearing – the first tranche concluded on 5 November 2015 and the second tranche was held on 20 February 2017 (see [19] and [21] above) – afforded sufficient time for the plaintiffs to secure a clear position from the BCA. After all, the plaintiffs were no strangers to communicating with the BCA having lodged complaints with the BCA in the past resulting in a Stop Work Order being issued against the defendant’s works (see [10]-[11] above). However, the BCA was not so informed and the plaintiffs did not satisfactorily explain this omission. Consequently, I was asked to consider and decide on the approach that BCA would have taken on the basis of expert testimony which, as Mr Lim KC ultimately admitted, was speculative.

(c) Thirdly, I found Assoc Prof Tan’s evidence logical and cogent. If the Property was structurally safe and there was no evidence of further tilting, I would imagine that the BCA would not have required the costly and invasive procedure of deploying the Underpinning Method even if the Safety Reserve was no longer there. I was persuaded by Assoc Prof Tan’s view that a different perspective on the Safety Reserve would be taken as regards old buildings, with the paramount consideration being the structural safety rather than the Safety Reserve.

In this case, it was not in dispute that the Property was structurally safe: Mr Lim KC’s position was that the Property was unsafe in the sense that the Safety Limits had been exceeded and not that it was structurally unsafe. I therefore found that the Property was structurally safe and, adopting Assoc Prof Tan’s evidence, that the BCA would not require it to be set upright.

In summary, the plaintiffs’ case on the implications of the loss of the Safety Reserve was entirely built on the BCA’s likely response to the loss of the Safety Reserve. In this regard, I am cognisant of the fact that the burden is on the plaintiffs to establish the approach that the BCA would take. But I did not have evidence from the BCA on what its response would have been. I was asked to conclude, based on Mr Lim KC’s testimony, that it would have required the Property to be set upright. But Assoc Prof Tan gave a cogent explanation why the BCA would not have acted as Mr Lim KC said it would. In the final analysis, I was unpersuaded by Mr Lim KC’s evidence here.

The relative costs of the Underpinning Method

With regard to the risks of the Underpinning Method, Assoc Prof Tan’s initial position was that it would involve “major and difficult foundation works” and would constitute “a delicate process … [that] may cause more damage to the house when not executed correctly”. However, the engineering experts eventually agreed that, if it was carried out properly, the Underpinning Method would entail “minimal risk … [of] further damage to [the Property]” and no risk of damage to the surrounding properties.

My decision on the appropriate mode of reinstatement

(a) First, it was undisputed that the Property was safe for habitation (see [54] above) and I found that the BCA would not require it to be set upright due to the loss of the Safety Reserve (see [57] above). This conclusion significantly undermined the need for the Underpinning Method as it meant that the Property did not have to be set upright as a matter of safety. The only issue was therefore how best to deal reasonably with the tilt.

(b) Secondly, the plaintiffs’ principal contention before the second tranche of the hearing was that, because the Safety Reserve was reduced, the Property was at risk of becoming unsafe due to a subsequent event (see [44] above). However, this argument was grounded in speculation because I had no basis to assess what that incident might be and how it would affect the Property. More importantly, if such an incident occurred and the elements of a cause of action were made out, it would be the future tortfeasor’s obligation to remedy the plaintiffs’ loss, perhaps by paying for the Underpinning Method to be deployed. In my judgment, the defendant could not bear the responsibility of remedying damage which may or may not arise due to a future event.

(c) Thirdly, the cost of the Underpinning Method was significantly higher than that of the Aesthetics Method. Further, the plaintiffs were also prepared to accept that the Property is valued at $7.9m: on that basis, the cost of the Underpinning Method is 29% of the value of the Property. If there was no real justification for setting the Property upright, what justification was there for utilising a far more expensive option which produced broadly the same result?

Application of the Aesthetics Method

I will first set out the general principles which I adopted in applying the Aesthetics Method, before discussing individual items by reference to P3.

General principles

First, when I inspected the Property on 4 November 2015, I noticed the tilt in several parts of the Property, particularly in the living room. However, despite multiple attempts to perceive the tilt from outside the Property, I could not visualise or sense that the Property was tilting from outside. Thus, I was not inclined to allow items for works which sought to address the tilt, from an aesthetics perspective, when the Property was viewed from the outside. Notably, Mr Ho did not suggest that any issues would arise if an aesthetic adjustment of the interior was performed without adjusting the exterior.

Individual items

(1) Items which I allowed in entirety

I allowed items 1.1, 1.3, 1.4, 1.6, 1.8, 2.1, 2.2, 2.5, 3.1, 5.2, 8, 9 and 10 in entirety. After inspecting the Property, hearing the experts and reviewing the parties’ submissions, I found that these works were necessary to address the perception of a tilt and that Mr Ho’s rates were appropriate. As the defendant has not appealed against my decision, I shall say no more about these items.

(2) Items which I allowed in part

(A) Works for the bathrooms

Items 1.2, 1.5 and 1.7 principally concerned works for the bathrooms in the Property (floor tiles, wall tiles and waterproof ceiling). In his supplemental report, Mr Lee accepted that there were ponding issues in two bathrooms in the Property, but denied that there were such issues in two other toilets and at the kitchen floor on the first storey. Neither Mr Ho nor the plaintiffs carried out a building survey of the Property to determine whether all the bathrooms suffered from ponding problems. In the circumstances, I found that only two bathrooms needed to be rectified.

(B) Miscellaneous works

(3) Items which I did not allow

Items 2.3, 4, 5.1 and 6 concerned works which sought to address the tilt, from an aesthetics perspective, when the Property was viewed from the outside. These were, respectively, plastering the external walls, scaffolding for works to the external walls, painting the external walls, and replacing the canopy roofs which had to be removed to carry out the external plastering works. However, as noted at [67] above, I was unable to perceive any tilt from the outside when I inspected the Property. Thus, I did not account for these items in assessing damages.

Secondly, I did not account for items 1.9 and 2.4 in assessing damages. Mr Ho conceded that these items were unconnected to aesthetic issues attributable to the tilt.

(4) Summary

The Third Issue

The law

In Sonny Yap (see [29(b)] above), Prakash J, relying on Ruxley, awarded $50,000 to the plaintiffs for the loss of amenity consequent on the defendant’s breach of contract in constructing undersized bedrooms. The award was for “the inconvenience to be experienced from the shortfall over the years”: see Sonny Yap at [129]. In this case, both parties treated Ruxley and Sonny Yap as directly applicable though the actions there were not in tort but for breach of contract.

However, I was not convinced that Ruxley is applicable to a claim for loss of amenity for a tort affecting land. The award for loss of amenity for breach of contract in Ruxley remains controversial, in particular because its theoretical basis is unclear. Lord Mustill rationalised the award as compensation for the “consumer surplus” inherent in transactions where “the value of the promise to the promisee exceeds the financial enhancement of his position which full performance will secure”: see Ruxley at 360G–H. However, Lord Lloyd understood the award as “a logical application or adaptation” of the exception to the principle that one may not recover for displeasure or distress occasioned by breach of contract, which applies where the purpose of the contract was to afford pleasure: see Ruxley at 374A–C. The position in Singapore is not much clearer: see the observations in The Law of Contract in Singapore (Andrew Phang Boon Leong gen ed) (Academy Publishing, 2012) at para 21.094, where it is observed that “[i]t remains to be conclusively explained … whether the basis of [an award for] loss of amenity is the loss of the promisee’s “consumer surplus”, or the inconveniences that would be suffered as a result of the breach”. Thus, it would seem that the theoretical basis for an award of loss of amenity for breach of contract is not settled though I accept that such awards were made in Sonny Yap and Tan Chin Seng and others v Raffles Town Club Pte Ltd [2005] 2 SLR(R) 302 (“Tan Chin Seng”) in reliance on Lord Mustill’s reasoning in Ruxley. I should add that the Court of Appeal in Raffles Town Club Pte Ltd v Tan Chin Seng [2005] 4 SLR(R) 351 (“RTC”) set aside the award for loss of amenity in Tan Chin Seng without commenting on the basis of the award. The question in my view remains open for consideration in an appropriate case. This is not such a case.

The exact rationale of the loss of amenity award in Ruxley is immaterial here. What is key is that it is not the same as an award for loss of amenity where the defendant has committed a tort affecting land.

(a) First, as a matter of authority, damages for loss of amenity have long been recoverable in torts affecting land such as private nuisance: they have thus been described “as part of the normal measure of damages”: see McGregor at para 37-019 and Burrows at pp 333-335. The position has not been the same in contract, which is one reason why the Ruxley award for loss of amenity remains controversial.

(b) Secondly, as a matter of principle, both of the rationales stated in Ruxley for the loss of amenity award are foreign to torts affecting land. The concept of consumer surplus, as stated by Lord Mustill, presupposes a contract between the parties. Lord Lloyd’s justification of the award is also rooted in principles of contract law. The basis of an award for loss of amenity in cases of torts affecting land cannot be the same. It is not difficult to discern the rationale for such awards. The purpose of torts affecting land is to protect the use and enjoyment of land. It is thus unsurprising that the remedies include damages for loss of amenity.

Therefore, in my judgment, the relevant cases here are the authorities in tort and not those in contract. I thus turned to consider the authority in tort cited by the plaintiffs in support of their claim for loss of amenity.

Application to the facts

The plaintiffs argued that an award for loss of amenity was appropriate because “under the Aesthetics Method, the plaintiffs will forever live in fear that the Property may undergo further tilting in the future”. But, in my judgment, this was not borne out by the evidence. The second plaintiff did not depose to this fear: on the contrary, he accepted, “with some reluctance”, that he would adopt the Aesthetics Method if the court did not accept the Underpinning Method. The second plaintiff’s complaint was the sensation that the Property was tilting. Thus, he made the following statements in his affidavit:

(a) “For more than 3 decades, my family lived in the Property without ever experiencing that sinking feeling or water ponding around the house”.

(b) “[Prof Tan] has never inspected the house so he cannot possibly have an idea of the frustration of living in a house that tilts. It has to be experienced to be believed. That is what my family is undergoing”.

Moreover, during the hearing, I expressly asked the second plaintiff whether the substance of his complaint was the fact of the tilt or the sensation of a tilt. He clarified that it was the latter. (Notably, though the second plaintiff deposed that living in a tilted house was bad for fengshui, he appeared to accept that the Aesthetics Method would address this.) In any event, any fear that the Property was unsafe had no foundation as I found that the tilting had ceased and the Property was structurally safe.

In RTC at [45], the Court of Appeal ruled that there would be no compensation for loss of amenity because “[o]therwise there will be double compensation”. Similarly, in my judgment, allowing a sum for loss of amenity here would have resulted in double recovery. I therefore did not award any damages for loss of amenity.

The Fourth Issue

After hearing the parties and reviewing their written submissions on these issues, I decided not to award interest to the plaintiffs. While the plaintiffs have not appealed against my order, the present case engages an important point about interest for special damages for damage to property. I shall therefore set out my full reasons for my decision on interest.

To begin with, I accepted the defendant’s submission that I ought not to award interest for the period between the first tranche of the hearing, ie, 5 November 2015, and the delivery of my oral grounds on 30 June 2017. That delay was a result of the plaintiffs pursuing an issue which I ultimately found to be unmeritorious. Moreover, the delay was entirely avoidable: if the plaintiffs and their experts had been more diligent in monitoring and measuring the tilt of the Property, in order to ascertain if it was getting worse, the issue would have been canvassed in the first tranche or not raised at all.

The real issue was whether I should award interest from the date of the commencement of the action until the end of the first tranche, and following the assessment of damages. On this point, the defendant emphasised that the plaintiffs had not carried out any rectification works and would not be doing so until the defendant paid them damages. The plaintiffs had thus not been kept out of any money, and so interest ought not to be awarded.

The general power to award interest is found in s 12(1) of the Civil Law Act (Cap 43, 1999 Rev Ed). In Lim Cheng Wah v Ng Yaw Kim [1983–1984] SLR(R) 723 (“Lim Cheng Wah”), L P Thean J (as he then was), in considering an earlier version of s 12(1), recognised at [6] that the basis on which interest is awarded is that a party has been kept out of money that ought to have been paid to him or her. In that case, the plaintiff’s and the defendant’s vehicles collided. The plaintiff and the defendant claimed and counterclaimed respectively for the damage caused to their vehicles. The parties settled on the issues of liability and the quantum of damages. The issue which arose was whether the parties were entitled to interest on the damages. In ruling that interest ought to be awarded, L P Thean J reasoned at [11] as follows:

Thus, the crucial reason why L P Thean J awarded interest was that the parties had paid for the repair of their respective vehicles and thus had been out of pocket for those sums. I shall return to this point below.

The facts here were akin to those in Giles v Thompson [1994] 1 AC 142 (“Giles”). Giles involved two appeals concerning similar facts. The defendants were liable for damaging the plaintiffs’ cars in motor accidents. The plaintiffs then hired substitute cars from companies. The hire contracts provided that the companies would have the right to sue the defendants in the plaintiffs’ names. The hire charges were also not capable of immediate enforcement but were only due if the plaintiffs breached provisions pertaining to the companies’ pursuit of the actions in the plaintiffs’ names. In one of the appeals, the trial judge awarded interest on the damages referable to the hire charges. Lord Mustill, delivering the principal judgment of the House of Lords, ruled that the plaintiff was not entitled to interest for the following reasons (at 167–168):

I respectfully agreed with this reasoning. In my judgment, it is important to examine whether a party has been kept out of money in practical terms. Such an approach ensures that the exercise of the power to award interest “correspond[s] with reality”, in the words of Lord Mustill. If the party has not been kept out of money in practical terms, then interest should not be awarded on that basis.

Conclusion

Kannan Ramesh Judge

Annex